COMMON LAW REASONING STUDY MANUAL CONTENTS: CHAPTER 1: INTRODUCTION
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CHAPTER 2: STATUTORY INTERPRETATION CHAPTER 3: JUDICIAL PRECEDENT CHAPTER 4: SUPREME COURT
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CHAPTER 5: DO JUDGES MAKE LAW
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CHAPTER 6: ADR AND THE CIVIL JUSTICE PROCESS CHAPTER 7: JUDICIARY- SELECTION
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CHAPTER 8: JUDICIARY- SELECTION- DIVERSITY 65 CHAPTER 9: JURY
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CHAPTER 10: LEGAL AID
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CHAPTER 11: MISCARRIAGES OF JUSTICES
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CHAPTER 12: SAMPLE QUESTIONS AND MOCK ANSWERS TO THE NEW COMPULSORY QUESTION 1971 129 CHAPTER 13: SAMPLE QUESTIONS
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Page1 Chapter1: Introduction CONTENTS A. Identifying features of the English Legal System and the Common law Tradition 1. Judging the operation of the English Legal System 2. The Common law tradition and its influence upon the English Legal System 3. The Historical Perspective 4. Criminal law, Civil law, and Public law 5. Substantive Law and Procedure
6. The Role of the Common Law judge 7. How Legal Doctrine is built up in Common Law Cases 8. The Civil Law Tradition 9. Identifying the distinctive features distinguishing the Common law and the Civil law 10. ‘Adversarial’ v ‘inquisitorial’ Proceedings 11. Problems with the Adversarial System of litigation
A. IDENTIFYING FEATURES OF THE ENGLISH LEGAL SYSTEM AND THE COMMON LAW TRADITION 1. JUDGING THE OPERATION OF THE ENGLISH LEGAL SYSTEM 1. A legal system is a complex of operations, processes, human actions, institutions and ideals. 2. What kind of rationality is involved in a legal system? Jurists argue that a legal system should not just be ways of getting things done, but as normative. In other words, they should express values and be ethically guided. The rationality that runs through it should be humane – i.e. it should be oriented towards achieving justice. 3. What criteria could we use? Justice is a subjective concept. Should ask ourselves – what principles ought to guide the legal process? What objectives should be kept in mind? What ethical and professional ideals are involved? 4. You have to evaluate and think critically about particular institutions and processes by reference to suggested objectives of the criminal and civil justice processes and the various interests that these systems are attempting to serve. 5. Always ask yourself: ‘To what extent is a particular institution or process achieving broad objectives and / or serving the interests of those involved in the process?’
Page2 CRIMINAL JUSTICE PROCESS: a. Objectives include – (i) to punish wrongdoers, (ii) to protect society,
(iii) to deter people from breaking the law. b. However at the same time it in an important requirement that the police, prosecutors and judiciary should act fairly and consistently. c. There are also obligations : (i) to the accused, (ii) to victims to the wider society to process cases speedily and (iii) not to interfere with civil liberties. Some of these objectives within the criminal and civil process may conflict and a balance must be found between competing requirements. How is this balance to be found? CIVIL JUSTICE PROCESS: a. Key objectives include: to provide the means by which civil disputes can be resolved in accordance with principles of fairness and justice. b. The administration of civil justice however, requires an efficient, cost-effective system in which cases can be disposed of fairly speedily. c. Whereas members of the public involved in disputes require access to affordable justice of a high quality.
2. THE COMMON LAW TRADITION AND ITS INFLUENCE UPON THE ENGLISH LEGAL SYSTEM 1. The English Legal System is the original common law system. 2. The common law is often referred to as a tradition (it has also been referred to as a ‘mystery’, ‘as ‘growing organically’, as ‘inherently irrational’, as defying logic’, as ‘particularistic’, as a ‘lady’, and as ‘chaotic’. The common law of England has come out of hundreds of years of development, beginning with Anglo-Saxon customs (in the period up to 1066) and the impact of the Norman rationalization and centralization of authority. Over the subsequent centuries it grew through complex processes of recognizing and rationalizing the multitude of judicial decisions that the judges of the central courts created. 3. The contemporary common law system can only be understood as a historical creation, with features that may reflect the contingencies and the accidents of history, rather than any rational design. 4. Today as statutes have greatly expanded in importance, and old traditions – such as oral pleading and the adversarial style of legal proceedings – have come under criticism and reform, some commentators talk of the end of the common law system’ (Baker).
5. Contrary to this view, others stress the adaptability and organic nature of the common law tradition and see the future as one of positive integration with other traditions. A. WHAT MAKES THE COMMON LAW DISTINCTIVE? (i)The importance of the judges and the lack of prominence of academics (jurists). (ii) The idea that English common law reflects national identity. The English Legal System is not democratic. Judges are appointed from lawyers. Jury trials are only used in limited situations. (iii) English law as a ‘seamless web’. The idea that there was always an answer that the law provided even if you could not immediately find it. (iv) The rule of exclusion – In interpreting statutes or legislation, the English judiciary adopted a rule that specified that one could not look at material beyond the legislation to determine its meaning. (v) The lack of a written constitution. Hence judges cannot annul laws (or stop their application) as being contrary to some articles of the constitution. (vi) Prosecution and verdict in criminal trials. The jury trial – a body of persons sworn o give a true answer or verdict to some question became the most distinctive feature of the common law world. The 20th century has seen a marked decline in the role of the jury, the almost total disappearance of the jury from civil trials and a reduction in the number of criminal trials that involve a jury. (vii) An uncodified law – The clearest differences between English law and the continental or civil law system. Moves towards codifying English law have never succeeded. B. A TRADITION DOMINATED BY JUDGES 1. In the English tradition judges are ‘the living oracles of the law’. (Blackstone) English law was based on custom, revealed by precedent. The judge, reconciling precedents in the practice of the courts, and not the jurists, were the oracles of the law. 2. The continental European situation is the result of the central role of the interpretation of the code of the Emperor Justinian. Roman based legal science was the province of professors.
Page3 3. THE HISTORICAL PERSPECTIVE A. CUSTOMS (BEFORE THE NORMAN CONQUEST) 1. The customs of the Anglo-Saxon society were said to have its roots in the life of the people and reflect the social structure of that way of life. At this point the population was largely illiterate and law was local custom largely unwritten and understood as a set of orally transmitted rules.
2. In 1066 the Norman French Baron William defeated the Saxon King Harold at the battle of Hastings and conquered England, becoming King William I. B. COMMON LAW 1. After the Norman Conquest, ‘local laws, however slowly, gave way to a general law of the country, which has become known as the common law. As communications improved so did the spread of central administration and a centrally administered law’. The fact that a central body was attempting to develop law as a means of administering the country changed the character of law and the legal institutions. 2. Over time the king’s courts became the most important forum for the resolution of disputes between citizens. The law of the king’s judges became the Common law (Commune Ley) as distinct from the local customs. 3. The judges, however, tried to recognize ‘general’ customs, a wise move in terms of getting acceptance of their decisions. Where there was no general custom the decisions of these judges came to form new law (as indeed was the case when they adopted custom). 4. The development of the common law was linked to procedure. An action could only be brought in these courts by obtaining (purchasing) a writ. Soon, however, the forms of such writs became fixed, and only Parliament could approve a new type of writ designed to meet a claim that could not be accommodated within the existing writs and forms of action. If there was no writ to cover your precise problem, unfortunately it was very difficult for the courts to listen to you. This created a rigid legal system and caused considerable hardship to many individual litigants. Further, damages, as the sole remedy was inadequate. 5. In response a practice grew of petitioning the king (as the ‘fountain of justice’) for justice in the individual case. The petitions were dealt with by the chancellor, who in this period was a man of the church and who was regarded as the ‘conscience’ of the king. In due course a formal procedure for such petitions evolved, culminating in a Court of Chancery, presided over by the Lord Chancellor, applying a system of rules known as ‘equity’ rather than the common law of the ordinary courts. C. THE DEVELOPMENT OF EQUITY 1. The Court of Chancery was often called a ‘court of conscience’. It is true that it was often effective in remedying injustices, but the existence of parallel jurisdictions brought problems and injustices of its own. 2. Chancery developed procedures separate from, but at least as complex as, those of the common law courts. It also accepted the operation of its own precedents. Certainly procedure again became important and a litigant had to be sure of the classification of the rule he sought to have applied in order to commence his action in the right court. The equity of the Chancery Court became a set of rules almost as precise as those of the common law.
3. In the case of conflict between the two systems, the rules of equity prevailed. Parliament sought to put an end to these divisions with the Judicature Acts 1873-1875, which established a unified system of courts that were charged with applying both the common law and equity. 4. Today, since the two types of rules are applied by the same courts, it may be apt to see equity as simply another form of the law. There are, nevertheless, certain distinctive features. (i) Firstly, while common law rules are available to plaintiffs as of right, equitable remedies are discretionary in the sense that they are subject to some general conditions of availability. For example, there is no absolute right to specific performance of a contract. (ii) Secondly, the existence of parallel systems of rules, the one based on formal procedures, the other based originally on the idea of substantial justice, has allowed some judges to invoke the tension between the two systems as a source of judicial creativity in developing the law to meet new situations. For example, Lord Denning has used this device in relation to the enforceability of promises and in relation to contracts affected by mistake.
Page4 D. COMMON LAW AND STATUTE LAW DISTINGUISHED 1. The phrase ‘common law’ is also used to denote the law applied by the courts as developed through the system of precedent without reference to legislation passed by Parliament. The common law resides in judicial decisions rather than rules. 2. It is only since the late nineteenth century that statutes have become the most prolific source of law in England and Wales. For most of the development of the common law system the majority of the law was applied by the courts independently of any statutory source. 3. The constitutional fiction was that the judges merely declared what the law was, as though it was already there and merely needed to be discovered. It is more usual today to admit that the courts create law. E. A FAMILY OF LEGAL SYSTEMS Today we can talk of two great secular legal families. a. Civil Law Systems 1. The legal systems of continental European countries, which were also exported around the world, gave rise to the civil law systems. 2. The most influential of these has been that of France, because, by producing the Code civil, Napoleon gave to France the first modern European legal system, which was copied elsewhere. In practice, each jurisdiction may mix their secular legal tradition with local customary or religious traditions.
b. Common law as a ‘family’ of legal systems 1. A wider meaning still of ‘common law’ is a description of a group of related legal systems. The English legal system was exported around the world during the colonial period. 2. The legal systems, for example, of the USA, Australia, New Zealand, Singapore, Malaysia and most of the Commonwealth countries, are all based on English common law although they may mix in local customary law, religious-based law or other influences. Each country has its unique characteristics. 3. What makes these different jurisdictions part of the common law legal family is not exactly similar rules or propositions but rather a working jurisprudence. Advantages of the common law ‘It is one of the great merits and advantages of the common law, that instead of a series of detailed practical rules, established by positive provisions, and adapted to the precise circumstances of particular cases, which would become obsolete and fail, when the practice and course of business, to which they apply, should cease or change, the common law consists of a few broad and comprehensive principles, founded on reason, natural justice, and enlightened public policy.’ Chief Justice Shaw of Massachusetts, in Norway Plains Co. v Boston & Maine Railroad (1845, 1 Gray, at 263).
Page5 4. CRIMINAL LAW, CIVIL LAW, AND PUBLIC LAW i. Criminal law 1. Criminal law is the embodiment of the power of the state to punish people for actions, or failures to act, which are deemed contrary to the interests of society as a whole or the powerful interest groups that have assumed control of the legislative process. 2. There is a close connection between civil wrongs (called ‘torts’) - for which the individual would be able to claim compensation - and crimes. In many legal systems the two actions take place concurrently, but they are usually separated in the English legal system. Therefore any such compensation would normally be claimed by civil action in the civil courts, though in a criminal trial the courts have power to award compensation to persons injured, payable by a person convicted at trial (S 35, Powers of Criminal Courts Act 1973, as amended by the Criminal Justice Acts of 1982, 1988 and 1991). ii. Civil law (2 meanings) 1. The term ‘civil law’ is used to refer to the continental European family of legal systems (also known as Roman law systems because of their heritage in legal reasoning and centrality of the use of codes dating back to the codes of the Roman Empire).
2. However, civil law is also the title of one category of English law. In one sense, civil law is all law other than criminal law and thus when people use the term ‘civil law’; they often mean English private law. iii. Public law The term is loosely used to refer to constitutional and administrative law.
5. SUBSTANTIVE LAW AND PROCEDURE 1. The distinction between substantive law and procedure is, in simple terms, the distinction between the rules applicable to the merits of a dispute (substantive law) and the rules governing the manner of resolution of a dispute (procedure). 2. For those who practice law the rules of procedure are very important, but at the academic stage of legal studies the focus is on the substantive rules.
6. THE ROLE OF THE COMMON LAW JUDGE 1. Historically, the common law tradition has always placed the judiciary at the centre of things. 2. Judicial decisions are seen as constituting the written law - as a body of maxims, precedents and reported decisions that constantly need to be rationalized and developed into a coherent ‘system’. 3. The authority of the common law is found in the judgments of courts deliberately given in causes argued and decided. 4. This bedrock of judicial activity is contrasted to the legislative process of making statute law and those decisions that constitute judicial interpretations of statutes and other forms of legislation. 5. The common law tradition entails a particular approach to the discovery, interpretation, and (where necessary) the making of law as practiced in contra-distinction to the jurisprudence of countries influenced by Roman law and the later European codes (such as the Code Napoleon). 6. ‘According to the declaratory doctrine of common law, judges do not make law. They are in Blackstone’s words, ‘the depositories the laws, the living oracles who must decide in all cases of doubt...’ – Cotterrel (1989) p 25. 7. The authority of law is seen as a traditional authority. The judge expresses a part of the total, immanent wisdom of law which is assumed to be already existent before his decision. The judge from within the law which is ‘the repository of the experience of the community over the ages’... Thus, even though he may reach a decision on a legal problem never before addressed by a common law court, he does so not as an original author of new legal idea but as a representative of a collective wisdom greater
than his own. He interprets and applies the law but does not create it, for the law has no individual authors. 8. It is the product of the community grounded in its history. 9. Judicial decisions, according to Matthew Hale writing in the seventeenth century, do not make law ‘for what only the King and 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 person such, whosoever’ * ... +. 10. Thus the judge is spokesman for the community about its law - but a particularly authoritative spokesman.
Page6 7. HOW LEGAL DOCTRINE IS BUILT UP IN COMMON LAW CASES 1. The common law is said to be ‘inductive’ and ‘empirical’ in nature. Thus it proceeds (at first) in an incremental way, laying down its rules on a case-by-case basis, inferring a general principle only after a plenitude of precedents justify that inference; it is reluctant to extend its chains of reason or principle beyond what actual experience has demonstrated to be wise. 2. In older textbooks the common law is often presented as a specific form of rationality which is democratic in its composition, in that it has come out of the resolution of countless small and large scale disputes. 3. Its statements thus succeed as ‘good law’ because they retain public support over time, are particularly logical in their relations to real life (because they are a response to legal argument which has taken place in the resolution of real disputes concern actual parties argued before specific courts), and disdainful of leg theory (because it looks backwards to its precedents, not forwards to hypothetical instances). 4. Historically, the common lawyer operating within English legal system was suspicious of statutes. Although recognizing the supremacy of Parliament, the common lawyer sought to restrict legislative intent by interpreting the wording of statutes strictly and precisely and was openly disdainful of codification. 5. The common lawyer valued the certainty of the law as a great goal though historically this certainty often produced injustice in individual cases. 6. As noted above, the more conscience-based set of outcomes called ‘equity’, arose which sought to ameliorate the harshness of the common law.
7. Equity, however, has not sought in modern times to replace the doctrine of precedent and the rules of recorded discretion with unpredictable ad hoc decision-making.
8. THE CIVIL LAW TRADITION 1. In contrast with the common law, the continent of Europe has been directly or indirectly influenced by Roman law (civil law), with its emphasis upon a code. 2. Civil law is said to be ‘deductive’ in nature because it proceeds from an exhaustive code of propositions in accordance with which all subsequent experience must be judged. In this picture, the civil lawyers of Europe are said to favour accessibility over certainty. 3. They stress that the law should be available to all, easily understandable, and kept (so far as possible) out of the hands of a priestly class. Precedent is not dispensed with but its hold is looser than in the English legal system. 4. Civil law systems tend to use a career judiciary who operate more courts, including inexpensive tribunals (staffed by younger judges) which can informally hear disputes involving smaller amounts than the English system. A broad ‘purposive’ approach is encouraged towards the interpretation of enacted words and phrases, and consistency is considered less important than doing justice to the individual parties. It is not uncommon for Codes to be deliberately vague and general in their choice of language, the better to allow individual cases to be decided upon their merits.
Page7 9. IDENTIFYING THE DISTINCTIVE FEATURES DISTINGUISHING THE COMMON LAW AND THE CIVIL LAW TRADITIONS What are legal ‘families’? 1. The term ‘legal families’ refers to coherent similarities that group together the various legal systems in the world into distinguishable ‘traditions’ or ‘families’. 2. These families may derive from: (i) religion (for example, the Islamic and Talmudic legal systems); (ii) others are associated with particular political and social ideologies (for example, common law, civil law or Roman law, and the now declining socialist law).
3. These families are not rigidly distinguished from each other but there are sufficient significant differences to define them, based on the following basic characteristics: (i) objectives of the legal system (ii) sources of law (iii) legal reasoning and methodology (iv) structure of pre-court and trial proceedings.
Common law and the civil law traditions 1. The two legal families that have dominated, and continue to dominate, western legal systems are the civil law and common law systems. 2. The origins of civil law system lie in Roman Law and the Code civil of nineteenth-century France, 3. While the common law system derives from medieval English civil society. 4. The transplantation of both legal families throughout the western world and beyond was assured by the French and British empires. 5. History is of vital importance in explaining why many of the cardinal features of the two legal families are different: their separate developments spanned many centuries. However, even as ‘ideal types’ they are far from polar opposites. Both have as their overall objective the establishment of systems for the just resolution of disputes and the maintenance of social order. The differences lie in the means and structuring of the process whereby such ends are achieved. 6. In today’s legal systems there is no pure example of either the civil law or common law system. All relevant legal systems in the western world are to greater or lesser degrees hybrids of these two models or of other legal families. While New Zealand and Australia, for example, may be seen as predominantly common law jurisdictions there are demands for both to recognize the traditional law of their preEuropean inhabitants; Malaysia combines the common law with Islamic law, particularly with respect to family law for its Malay citizens; South Africa combines the civil and common law with allowance for local customary laws.ved from David and Brierley (1985).
CHARACTERISTICS OF COMMON LAW SYSTEMS The common law family is usually defined by reference to the following characteristics: (i) a concern to determine legal disputes according to their individual circumstances and the relevant judge-made case law, rather than by applying general statements of legal principle
(ii) a traditional picture of common law that presents the source of law as being found in the texts of individual judgments. There was never, therefore, a single authoritative statement of the common law. It was thus, in important aspects, always ‘unwritten’ yet ‘written’. (iii) It applies to all legal persons including the state (traditionally there is no division between public and private law). (iv) The adoption of an inductive form of legal reasoning whereby legal principles are derived from the texts of many single judgements. (v) A system in which the trial is the distinct and separate climax to the litigation process. (vi) courtroom practice which may be subject to rigid and technical rules the fact that the parties to the dispute essentially control proceedings and that there is an emphasis on the presentation of oral argument by counsel. The role of the judiciary is more reactive than proactive. Given the parties’ opportunity and responsibility for mounting their own case, the system is more participatory. (vii) the fact that the judiciary possesses an inherent power to adjudicate separately from the executive or political process. While the judiciary may be paid by the state, they exercise a separate power free from political interference. (viii) the fact that the expense and effort of determination of disputes through litigation falls largely on the parties.
CHARACTERISTICS OF CIVIL LAW SYSTEMS The civil law family is usually defined by reference to: (i) a concern to determine legal disputes according to predetermined legal principles established to maintain social order (ii) the source of law being found in authoritative statements of basic legal principles- for example, the Civil and Criminal Codes - issued by the state and propounded upon by legal scholars. (iii) the separation of public law (concerning relations between the individuals and the state) and private law (between individuals). (iv) the adoption of a deductive form of legal reasoning whereby pre-existing general statements of legal principle are applied to the specific circumstances of individual cases. (v) in litigation, the fact that no rigid separation exists between the stages of the trial and pre-trial in court cases. Legal proceedings are viewed as a continuous series of meetings, hearings, and written communications during which evidence is introduced, witnesses heard and motions made. (vi) rules relating to courtroom practice which are intended to be minimal and uncomplicated.
(vii) a less conspicuous role played by lawyers, with an emphasis on written submissions rather than oral arguments. (viii) the judiciary in theory and practice play a more organisational and inquisitive role. The greater directorial role of the judiciary allows less room for the parties to direct their own case. In this sense the system is more hierarchical than participatory. (ix) the fact that, as officers of the state, the judiciary possesses no separate and inherent power to adjudicate the fact that a greater proportion of the effort and expense of dispute determination through litigation falls on the state.
Page8 Has there been a gradual convergence of legal systems? 1. Key words currently are globalization and interdependency. They denote the economic, technological and social trends that have made the idea of discrete national states, societies or legal systems seem over-simplifications, if not actually redundant. 2. As the barriers separating societies have dissolved so - it is argued - have the identifying features of the common law and civil law families been weakened. 3. Legal systems are exposed to, and sometimes actively seek out, alternative practice and procedure as well as the jurisprudence of other systems. 4. In the English legal system we think of the daily impact of European Union Law and now we see the incorporation into English law of the European Convention on Human Rights by the Human Rights Act 1998, which came fully into force in October 2000. 5. Generally speaking, International law, including international commercial, environmental and human rights law, are amalgams of the principles, substance and practice of both common law and civil law systems. 6. According to this view, characteristics of the legal systems associated with the two families have gradually converged. 7. Any common law system may well have adopted non-adversarial features and there is currently great interest in adopting alternative practices and concepts (such as customary forms of dispute resolution, or ‘restorative justice’). 8. Others, however, argue that certain fundamental presumptions and essential structural features of the legal families are so divergent that there are ‘irreducible differences’ between them. 9. The distinctions between the common law and civil law systems seem to be weakening in a number of respects:
Page9 The pre-eminence of legislation 1. Statutes that are comprehensive and detailed in style and content now comprise a highly significant source of law in common law systems. 2. While case law still dominates in certain areas, such as tort law, a vital aspect of the common law lies in the way common law judges engage in the interpretation and application of legislation. Judicial use of legal principle 1. Especially in the superior courts, judges refer to legal principles - whether framed in statutes or ‘found’ in common law - when interpreting or applying the law. 2. Legal principles that may originally have been induced in classical common law style are now applied to the circumstances of individual cases in a deductive fashion. Such principles include for example: (i) The neighborhood principle in tort law (ii) natural justice in administrative law (iii) implied terms in contract law (iv) constructive trusts in property law. Judicial activism in trial and pre-trial court practice 1. Traditionally, the common law judge had limited power over the direction or substance of the case; reaching a conclusion and writing a judgment was limited by the facts presented and the arguments raised by the parties. 2. In comparison, the judge in a conventional civil law inquisitorial model is expected to pursue actively whatever avenues will result in resolution of the disputes, in a continuous process of inquiry encompassing trial and pre-trial stages. 3. Judges in several common law jurisdictions - such as those of New Zealand and Australia - are becoming more active in defining the issues in dispute and moving cases forward to a hearing. 4. As we shall see when we look at reforms in the civil justice process, there has recently been a development of process management discourse and case management techniques in common law courts. In part these are reactions to the procedural excesses of adversarial litigation. Assisted and alternative dispute resolution processes
1. The development of judicial activism has been mirrored by an increased use of court related alternative dispute resolution (ADR) processes. 2. The main forms of ADR are: (i) Arbitration (ii) conciliation/mediation (iii) early independent evaluation and report. 3. Arbitration and expert referral are adjudicative in nature. 4. With arbitration the parties to the dispute choose an arbitrator to determine their dispute. The process is private and does not result in the legal announcement of principles to guide parties not involved in the proceedings. 5. Other processes are facilitative and involve assisting parties to reach a decision. 6. Some processes, such as conciliation, may be facilitative in the information gathering stages and adjudicative or evaluative in the final stages. 7. Sometimes these processes are regarded as external to the court system; but often they are used to resolve disputes commenced within the court system. 8. The growing use of these processes has an additional effect, in that exposure to these processes may be changing the model of judicial determination so that there is more emphasis on facilitative communication.
Page10 10. ‘ADVERSARIAL’ v ‘INQUISITORIAL’ PROCEEDINGS 1. The cornerstone of English legal procedure it is the adversarial (or accusatorial) nature of the proceedings as contrasted with the inquisitorial nature of civil law systems. 2. In the classical adversarial form of trial: “... the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large ... So firmly is all this established in our law that the judge is not allowed in a civil dispute to call a witness whom he thinks might throw some light on the facts. He must rest content with the witnesses called by the parties.” (See Jones v National Coal Board *1957+ 2 QB 55, 63-64 per Denning LJ.) A. PROCEEDINGS OF AN ENGLISH COURT
1. The traditional picture of the English court - an arena wherein a contest is waged between parties in which one emerges the winner. 2. In the inquisitorial procedure the court takes charge of the case even to the extent of framing the legal and factual issues to be disputed. 3. In the adversarial system the parties dictate, within the constraints of traditional forms and packages such as writs, forms of action and pleadings - the form, content and pace of proceedings. 4. The pre-trial proceedings are arranged such that by the time of the trial each side should have gained as much information as possible both to support their own case and to exploit any weaknesses in the opposition’s arguments. 5. The agent of the court (i.e. the judge) should stand back and wait for the case to proceed to trial. 6. During the trial the judge in civil cases and the judge and jury in criminal cases should allow him/herself to be guided, at least initially, as to the relevance of questions of fact and law by the parties’ advocates. 7. The judge should take a procedural ‘back seat’ and intervene only to ensure that fair play is operating - or where the public interest is at stake. 8. The proceedings are dominated by the advocates for the parties with, as in the case of criminal cases, the prosecution trying to build a strong case against the defendant and the defence, in turn, endeavoring to demolish the prosecution’s case. 9. Throughout this procedure witnesses are examined and cross-examined using a variety of tactics available to the skilled advocate. 10. Some use subtle means to cause witnesses to react in a certain way; others use bullying tactics to obtain the same result from nervous participants. The success of a case, therefore, often rests upon the ability of an advocate to manipulate proceedings and not just the weight of evidence. 11. The system rests upon a number of assumptions - specifically that: (i) both parties are represented (ii) the lawyers representing each party are efficient and equally matched (iii) the lawyers will promote their clients’ interests. 12. English lawyers do not owe a general duty to ensure that justice is done or to enable the court to find the truth. Their only obligation to the court is not to mislead the court on questions of law or fact. How then does the truth emerge? Only as a consequence of the fact that each side is intent on winning the case.
13. But the adversarial system often produces unexpected and, according to some observers, unjust results due to the manner in which evidence can be presented. The outcome, therefore, hinges upon the events of the trial itself as much as the gathering of evidence beforehand, since the courts only judge what is presented before them and, especially when juries are present, the way it is presented. 14. With the exception of the Coroner’s Court, proceedings in the English courts do not take the form of investigations into the matters brought before them, unlike the inquisitorial system which basically entails an examining judge conducting his or her own investigation, often in conjunction with organizations such as the police, before any trial takes place. 15. The inquisitorial procedure appears more obviously oriented as a search for the truth, taking into account all aspects of the matter, and consequently a substantial number of cases do not reach the trial stage. Those that do go to trial often reach that point with far greater certainty as to the outcome than in courts using the adversarial system.
Page11 11. PROBLEMS WITH THE ADVERSARIAL SYSTEM OF LITIGATION 1. To emphasize an earlier point, in broad terms, the present adversarial system of conducting proceedings refers to a system in which the parties, and not the judge, have the primary responsibility for defining the issues in dispute and for carrying the dispute forward. 2. The system is based not only on substantive and procedural law but also on an associated legal culture and ethical base. The base in legal culture is important. 3. In reviewing the merits of the adversarial method. Farrar and Dugdale ((1990), p. 68) drew upon American research to suggest two direct advantages: (i) it may reduce the element of bias in the decision maker (in the adversarial process such a person may make up his mind later and on fuller evidence than he would in an inquisitorial process). (ii) it may lead the lawyer for a party with a weaker factual case to put forward a fuller version of the facts than he would in an inquisitorial context. 4. However, they considered the most significant aspect of the research to be that: (i) the adversarial process was more acceptable to the parties. (ii) this was true for both sets of people in the study, i.e. those brought up in the American system and those brought up in the French system. 5. The term ‘adversarial’ does not have a precise meaning. Litigation and other dispute resolution processes used in common law systems are a blend of adversarial and non-adversarial elements and processes that do not fall into any particular category of legal system.
6. In its simplest form the adversarial system of litigation is claimed to have a number of consequences, which have been challenged as counterproductive or inefficient. For example, it has been said that: (i) the system, due in large part to its emphasis on the final hearing, is about winning and losing - each party has responsibility for advocating its own case and attacking the other party’s case. This puts an emphasis on confrontation; moreover under this ‘sporting’ theory of justice the result may be (as with competitive sport today) a result of the level of financial resources that a team can deploy. Those with the highest-paid lawyers (or who can bring in highly specialized ‘teams’) may win the game (ii) the lawyer’s role is strictly partisan - the lawyer has a duty to represent the interests of his or her client and is not ethically accountable for the client’s goals or the legal means used to attain them, although the lawyer does have certain countervailing duties to the court - this gives lawyers an incentive (and perhaps even an obligation) to exploit any advantages the legal system allows for their clients the evidence supplied by ‘expert witnesses’ may be ‘fashioned’ to suit a particular line of argument (iii) the judge is responsible for ensuring that the proceedings are conducted fairly - this makes judges sensitive about limiting the issues and arguments raised by parties and putting other controls on proceedings, in case that is considered biased or unfair (iv) the judge is not responsible for how much evidence is collected, how many different arguments and points are put to the court or how long the proceedings take (v) the judge adjudicates questions of fact and questions of law submitted to the court, but is not responsible for discovering the truth or for settling the dispute to which those questions relate (vi) giving the parties control of proceedings may be a cause of expense and lead to great delay; sometimes this is used as a tactic by one side to ‘force’ a settlement out of court, but sometimes is just a consequence of both sides analyzing and complicating the materials produced by the other side in a continual cycle. 7. These and other features of the adversarial system have been criticized as contributing to (among other things) excessive costs and delays, over-servicing, a lack of accountability and an unduly confrontational approach to dealing with disputes. 8. Lord Woolf in his final report to the Lord Chancellor (1996) on the civil justice system in England and Wales identified defects in the adversarial system of litigation, as practiced in those jurisdictions as follows: (i) it is too expensive - costs often exceed the value of the claim (ii) it is too slow in bringing cases to a conclusion (iii) it is too unequal - there is a lack of equality between the powerful, wealthy litigant and the underresourced litigant (iv) it is too uncertain - it is difficult to forecast what litigation will cost and how long it will last
(v) it is incomprehensible to many litigants. 9. Paradoxically, some of the same features of the adversarial system of litigation which some would identify as problems are defended by others as benefits of the system.
Page12 10. For example, in response to the criticism that the judge’s power to find the truth is limited, others maintain that ‘truth is best discovered by powerful statements on both sides of the question’ (Denning LJ in Jones v National Coal Board [1957] 2 QB 55, 63, citing Eldon LC in Ex pane Lloyd [1822] Mont 70, 72) or that, in any case, the ultimate purpose of the adversarial system is not to determine the truth but to resolve the dispute between the parties. 11. Control of litigation by the parties and the strictly partisan role of the lawyer, seen by some as causing problems through adversarial excesses, may be seen by others as producing significant benefits by contributing to an open and participatory form of dispute resolution consistent with the traditions of libertarianism and democracy. Most lawyers can point to cases where their ‘point scoring’ or full discovery uncovered the ‘smoking gun’ in the case or, at least, gave litigants the satisfaction of their day in court. 12. Similarly, the passive role of the judge in adversarial litigation may be seen as an appropriate means of ensuring that judicial impartiality and neutrality, upon which the legitimacy of the process is largely based, are preserved as paramount. 13. The trial focus of the adversarial system may have benefits in providing a date, once fixed, by which the matter will be resolved. This may be an advantage compared to European systems where the dispute resolution process does not have such a distinct focal point and can drift. 14. The adversarial system has also been criticized for its indirect effects. 15. Strictly, the adversarial system relates only to a small part of dispute resolution - trials in courts. However, it has a wide-ranging impact and affects all other stages of proceedings in courts, the role and proceedings of tribunals, other dispute resolution procedures used by courts and tribunals, and forms of dispute resolution outside courts and tribunals.
Page13 Chapter2: Statutory Interpretation CONTENTS: A. Basics
B. Problems in the Interpretation and Drafting of Statutes C. The Traditional Rules of Interpretation 1. Literal Rule 2. Golden Rule 3. Mischief Rule 4. Purposive Approach D. The Ruling in Pepper v hart E. The Impact of European Interpretive Methods F. Impact of HRA 1998 on Statutory Interpretation G. The Unified Contextual Approach h. Presumptions I. Aids to Interpretation J. Conclusion k. Case Illustration – How do Judges Really Interpret Statutes
A. BASICS 1. Statutes are a fundamental source of law. A large number of cases heard by the courts involve the meaning of words in a statute or delegated legislation. Although Parliament makes law, it is left to the courts to apply it. 2. Where the meaning of a statute is uncertain, the job of the courts is to discover how Parliament intended the law to apply and put that into practice. 3. The judiciary, have a measure of discretion and creative power in the manner in which they interpret the legislation that comes before them.
Page14 B. PROBLEMS IN THE INTERPRETATION AND DRAFTING OF STATUTES
1. F.A.R. Bennion (1990) identified a number of factors that may cause doubt in interpreting a statutory provision including ellipsis, broad terms, meaning of words may change over time, deliberate uncertainty, unforeseeable developments, ambiguity, drafting and printing errors. 2. Another problem is the adversarial nature of legal proceedings in the UK. Always at least two parties and each may be putting forward a different meaning to one or more words. F. A. R. Bennion (1990) has identified a number of factors that may cause doubt in interpreting a statutory provision: ** Ellipsis: the drafter refrains from using certain words that he regards as implied automatically, although others may not realize this. (i) Broad terms with wide meaning are often used, and it is left up to the user to decide what situations fall with provision (e.g. the word ‘vehicle’ clearly covers motor cars, buses, motor cycles. But does it include a donkey cart, an invalid carriage or a child’s tricycle?) (ii) The meaning of a statutory expression may change over time; e.g. does ‘family’ include ‘common law spouse’; does ‘father’ refer to the biological or the social father? (iii) Deliberate uncertainty. Drafters may deliberately use ambiguous words - e.g. where provision is politically contentious. (iv) Unforeseeable developments. Drafters cannot anticipate all new developments or devices that may create legislative loopholes. (v) Inadequate use of words — especially ambiguity, where words are capable of two or more meanings. (vi) Printing and drafting errors — provision may be narrower or wider than intended.
C. THE TRADITIONAL RULES OF INTERPRETATION 1. These traditional rules of interpretation are not rules at all, but different approaches which textbooks generally say have been developed by judges. Each rule developed at a different stage in legal history. 2. The Interpretation Act 1978 does not provide notes for interpretation but simply provides standard definitions of common provisions. [The two attempts by Lord Scarman in 1980 to put legislation through Parliament in order to provide the courts with a wider range of aids to interpret statutes both failed.]
1. THE LITERAL RULE
1. The literal rule gives all the words in a statute their ordinary and natural meaning, on the principle that the best way to interpret the will of Parliament is to follow the literal meaning of the words it has used. Under this rule, the literal meaning must be followed, even if the result is absurd. 2. This approach was increasingly used in the 19th and 20th century as Parliamentary became sovereign. 3. In Duport Steels Ltd v Sirs *1980+, Lord Scarman said: ‘ Parliament makes and unmakes the law, the judge’s duty is to interpret and to apply the law, not to change it to meet the judge’s idea of what justice requires’. (i) Whiteley v Chappell (1868) – A statute aimed at preventing electoral malpractice made it an offence to impersonate ‘any person entitled to vote’ at an election. The accused was acquitted because he impersonated a dead person and a dead person was clearly not entitled to vote. (ii) In R v Harris (1836) the statute that made it an offence for someone unlawfully and maliciously to stab, cut or wound any person was held not to apply where the defendant bit off the end of the victim’s nose. It was held that the words indicated that for an offence to be committed some form of instrument had to be used. 4. Advantages – encourages precision in drafting, respects parliamentary sovereignty and encourages certainty in the law 5. Disadvantages - where literal rule leads to absurdity, Parliament is unlikely to have intended absurdity and injustice, reduces the role of the judge to a mechanical task, difficult to adapt to changing circumstances if legislation outdated. To place undue emphasis on the literal meaning of the words is to assume an unattainable perfection in draftsmanship. Ignores the limitations of language.
Page15 2. THE GOLDEN RULE 1. The golden rule provides that if the literal rule gives an absurd result, which Parliament could not have, intended, then (and only then) the judge can substitute a reasonable meaning in the light of the statute as a whole. Thus where the statute permits two or more literal interpretations, the golden rule allows the court to adopt the interpretation which produces the least absurd or repugnant effect. 2. The controversial aspect of this rule is the unresolved question of whether it could only apply where words were ambiguous or whether it could also be used where the meaning was clear but absurd. 3. There are also problems over the meaning of ‘absurd’. Does it mean inconsistent with other provisions in same Act or absurd for any reason? 4. R v Allen (1872) - Section 57 of the Offences Against the Person Act 1861 stated that ‘whosoever being married shall marry any other person during the life of the former husband or wife ....shall be
guilty of bigamy.’ It was pointed out that it was impossible for a person already married to ‘marry’ someone else – they might go through a marriage ceremony, but would not actually be married; hence using the literal rule would make the statute useless. The courts therefore held that ‘shall marry’ should be interpreted to mean ‘shall go through a marriage ceremony’. 5. Adler v George (1964) - The defendant was charged under S 3 of the Official Secrets Act 1920, with obstructing a member of the armed forces ‘in the vicinity of any prohibited place’. The court held that while in many circumstances ‘in the vicinity’ could indeed only be interpreted as meaning near to, in this context it was reasonable to construe it as including being within the prohibited place itself (an air force station) . 6. The 1969 law Commission said that the rule provides no clear means to test absurdity and did not favour it. 7. Advantages - can prevent the absurdity and injustice caused by the literal rule 8. Disadvantages - the ‘rule’ provided no clear meaning of an ‘absurd result’, shows some drift of the power from Parliamentary control to judicial discretion, uncertainty.
3. THE MISCHIEF RULE 1. This mischief rule was laid down in Heydon’s Case (1584) where it was stated that for the true interpretation of all statutes four things are to be considered: (1) What was the common law before the making of the Act? (2) What was the mischief and defect for which the common law did not adequately deal? (3) What remedy Parliament resolved and appointed to cure the defect? (4) The true reason for the remedy The judge should then interpret the statute in such a way as to shall suppress the mischief and advance the remedy. 2. The mischief rule is regarded as the oldest of the rules dating from a time when the judges had much influence over the contents of Acts, and when Parliament’s position was not as powerful as it is today. 3. Smith v Hughes (1960) - The Streets Offences Act 1958 made it a criminal offence for a prostitute to solicit potential customers in a street or public place. Here although, the prostitute was not in the street but was in a house trying to attract the attention of men walking by. The judge decided that the aim of the Act was to enable people to walk along the street without being solicited. Hence, even though the prostitute was not in the street herself, the Act should be interpreted to include this activity.
4. The Law Commission preferred this rule to the other traditional rules but said that it was outdated as it assumes that statutes are supplementary to the common law. 5. Advantages - Helps avoid absurdity and injustice, and promotes flexibility. Allows the judge to find the ‘mischief’ that Parliament was concerned to remedy by passing the legislation. Allows judges to interpret statutes in the light of changing social, economic and technological circumstances. 6. Disadvantages - may increase judicial power at the expense of legislative power. Still sufficient restrictions and controls on the use of extrinsic aids to make the ‘mischief’ hard to determine in some cases. In 1938 John Willis said that a court invokes whichever of the three rules produces a result that satisfies its sense of justice in the case before it but do not assign any reasons for choosing one rather than the other. Is this still the case today?
Page16 4. THE PURPOSIVE APPROACH 1. The idea of this approach is to give effect to the intention or purpose of the statute. 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. 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. 2. A clear statement of this approach comes from the judgment of Denning LJ in Seaford Court Estates Ltd v Asher [1950] 2 All ER 1236: ‘we do not sit here to pull the language out of Parliament to pieces and to make nonsense of it...we sit here to find out the intention of Parliament and carry it out, and we do this better by filling in gaps and making sense of the enactment than by opening it up to destructive analysis.’ Lord Denning’s approach was severely criticized by Viscount Simmonds in Magor & St Melons RDC v Newport Corporation *1952) AC 189 said ‘Denning LJ’s views are a naked usurpation of the legislative function under the thin guise of interpretation...If a gap is disclosed, the remedy lies in an amending Act.’ 3. However, in 1980 Lord Scarman said in a lecture that ‘no-one would dare to choose the literal rather than a purposive construction’ of a statute. 4. The purposive approach has gained ground in the last 20 years owing to the influence of the European courts and the impact of Pepper v Hart (1993). 5. Twining has said that ‘... the courts have departed from the old literal approach of statutory construction and now adopt a purposive approach, seeking to discover the Parliamentary intention lying behind the words used and construing the legislation so as to give effect to, rather than thwart, the intentions of Parliament’.
6. In Pepper v Hart [1993] AC 593, Lord Browne-Wilkinson referred to “the purposive approach to construction now adopted by the courts in order to give effect to the true intentions of the legislature”. 7. In Ferguson v Welsh (1987), the hl said that the Occupier’s Liability Act 1957 was passed to compensate a lawful visitor who was injured by the occupier’s defective structure. The HL went on to hold that the work of demolition falls within the words ‘work of construction’ 8. Advantages - looks to the spirit of the law rather than its letter, Allows judges to investigate relevant extrinsic aids to resolve ambiguities, enables judges to keep up with changing times and new developments. 9. Disadvantages - gives more power to the judiciary, at the expense of the legislature, thus bringing into question parliamentary sovereignty and the separation of powers by allowing judges, in effect, to make new law, may result in uncertainty in the law and subjective decision-making looks beyond the Act itself to extrinsic aids and the broader context, bringing into question parliamentary intention as evidenced by the plain words of the section.
Page17 D. THE RULING IN PEPPER V HART 1. Hansard is the official daily report of parliamentary debates, and therefore a record of what was said during the introduction of legislation. In 1993, the case of Pepper v Hart the HL overturned the previous rule against consulting Hansard and said that the Courts could look at Hansard to see what the Minister had said, and that his remarks could be used to decide what Parliament had intended. 2. The decision in Pepper v Hart (1993) on the use of Hansard shows a move towards a purposive approach. However, the limitations placed on the use of Hansard make it clear that the House of Lords is still not prepared to take too creative an approach to statutory interpretation. 3. Reference to Hansard is now allowed, but only where: (i) the legislation is ambiguous or obscure (to such an extent that to use the literal approach would lead to absurdity); and (ii) the material in Hansard to be relied upon must consist of statements made by a Minister or other promoter of the Bill; and (iii) the statements to be relied on in Hansard must be clear and unambiguous 4. Whilst Pepper v Hart acknowledges that a new practice is necessary, this practice has to be informed by a conventional understanding of the role of the courts, as defined by the Bill of Rights. Although the techniques of purposive interpretation are thus ‘revolutionary to a degree, they work within the existing constitutional settlement.
5. Lord MacKay had dissented claiming that the change would drastically increase legal costs since solicitors would need to engage in research to check if relevant statements had indeed been recorded in Hansard. Cases would take longer if such evidence is raised. 6. Although it is clear that Hansard can be referred to in order to find evidence of Parliamentary intention, there is still much debate as to how useful it is, and whether it can provide good evidence of what Parliament intended. 7. In 1998 a High Court judge had stated that he had yet to hear a case ‘where the exercise of consulting Hansard proved the slightest bit helpful and many when it proved time consuming and wasteful’. 8. In the 9 years since Pepper v Hart, possibility of reference made in over 360 cases. In each of these, research will have been done at the client’s expense. In very few has there been a difference in the outcome. Smith, Bailey & Gunn. 9. In Spath HoJme Ltd [2001], the House of Lords held as the meaning of the relevant section was not ambiguous, there was no need to make use of Hansard. Following the membership into the European Union and the introduction of the Human Rights Act 1998, judges are now expected by Parliament to interpret Acts in a way which ensures that they are not in conflict with the European Union Law and is compatible with the Human Rights Convention.
E. THE IMPACT OF EUROPEAN INTERPRETIVE METHODS 1. Although common law judges always made use of a form of purposive interpretation. The need to interpret European law lifts this into a new context; it may even be that this means that the courts have to follow European law rather than English law if there is a conflict 2. In H.P. Bulmer Ltd v J. Bollinger SA Lord Denning held, when the English courts when interpreting Community law, they must follow the European pattern in interpretation, which is the purposive approach, i.e. to look to the purpose or intent. The literal approach was inadequate when dealing with the Treaty of Rome since that statute was so broadly worded. 3. Decisions of the European Court of Justice bind the courts in UK by virtue of Section 3. Since the ECJ adopts a more purposive, teleological or schematic approach, this surely will influence the traditional, literalist, and restrictive approach of the English judges. 4. In Buchanan and Co. Ltd v Babco Forwarding and Shipping (UK) Ltd, Lord Denning pointed out that the ECJ used a ‘schematic’ or ‘teleological’ system of interpretation, looking at the design or purpose of the legislation and quite readily filling any gaps. Lord Denning further reiterated that the traditional rules in interpretation used by the English courts must now be set aside.
5. In Pickstone v Freemans plc (1988) HL held, that it was permissible and necessary for the courts to read words into the inadequate domestic legislation in order to give effect to Community Law in relation to provisions relating to equal pay for work of equal value 6. Taking into account the decision of the ECJ in Marleasing SA v La Comercial Internacional de Alimentacion SA (1992) 1 CMLR 305 the national courts are now required to interpret national law in accordance with Community law wherever possible even where no national legislation has been specifically enacted to comply with. This sums up the position that all UK legislation must be interpreted to avoid conflict with the European Union law and if there is irreducible conflict, the European Union law will prevail. 7. In Garland v British Rail Engineering Ltd [1982] 2 WLR 918, the House of Lords held that S 6(4) of the Sexual Discrimination Act should be interpreted in such a way as to make it consistent with Article 119 of the EEC Treaty. 8. European methods of interpretation have had an important impact on the practice of statutory interpretation. Many writers claim to discern increased evidence of a purposive approach in the English system of interpretation, but some are more circumspect.
Page18 F. IMPACT OF HRA 1998 ON STATUTORY INTERPRETATION 1. The interpretative provisions of the Human Rights Act have had a major impact in judicial interpretative practices. 2. Our consideration of the new practices has to begin by looking at Section 3 of the Act Under the Human Rights Act 1998 (HRA 1998), Section 3(1) HRA 98 requires so far as it is possible to do so, that primary and subordinate legislation must be read and given effect in a way which is compatible with the ECHR. The pressing question is: how will the courts interpret legislation in the light of section 3? 3. Section 4 HRA 1998 further states that if the court cannot construe the statute in a way that is compatible, it can issue a declaration of incompatibility. 4. Section 10(2) provides that the amendment of primary legislation can be made by ministerial order (‘Fast track’). See R v A (No.2) 5. In R v A (No.2) (2001) hl the court had to consider Section 41(3) of the Youth Justice & Criminal Evidence Act 1999. This section prohibits, in a rape trial, the cross- examination of the complainant as to her sexual relationship with the accused. The intention of Parliament is to protect the complainant from intrusive cross-examination. If Section 41 is to be literally applied, it would exclude evidence which might be critical to the defense. This would be in breach of Article 6 ECHR which provides for the right to a fair trial. Held, taking into account the interest of the D, the victim and society, and applying the
court’s interpretative obligation under S 3 HRA 1998, the evidence and questioning of the alleged prior consensual sexual relations between the accused and the complainant is admissible under S 41(3)(c) of the YJCEA 1999. In R v A (No.2), the House of Lord held unanimously that S 41 of the Youth Justice and Criminal Evidence Act must be read subject to Section 3 of the HRA 1998. However, 2 different approaches emerged on interpreting the Act according to the HRA 1998. (i) Lord Steyn gave the lead speech and stated that the judges must be prepared even to override clear Parliamentary intention in the particular statute in order to give precedence to the requirements of the ECHR. (wider interpretation). His Lordship observed that a declaration of incompatibility under S 4 HRA is a measure of last resort. It must be avoided unless it is plainly impossible to do so. (ii) Lord Hope was not prepared to go that far and insisted that compatibility with the Convention rights is the sole guiding principle. Lord Hope elaborated that S 3(1) preserves the sovereignty of Parliament and does not entitle the court to legislate, its task is still one of interpretation. Lord Hope had taken the narrower interpretation and restrictive approach to S 41, and if there is incompatibility, a declaration of incompatibility should be made under S 4 HRA, leaving it to Parliament to rectify the incompatibility. 6. Michael Zander commented it seems likely that for the foreseeable future, the approaches will oscillate unpredictably. 7. Considering the cases of R v A and Ghaidan v Godin Mendoza, David Sandy commented, “Different judges could come to different conclusion on the same statute. There is no provision for any standard interpretation.” 8. Lord Woolf in March 2004 in Cambridge had warned judges that, “by enacting S 3, Parliament has placed the judges under a duty to interpret legislation in a manner that is so far as possible Convention compliant. But the courts should not treat S 3 as a license to intrude into Parliament’s role.” 9. ‘In applying Section 3, courts must be ever mindful of this outer limit. The Human Rights Act reserves the amendment of primary legislation to Parliament. By this means the Act seeks to preserve parliamentary sovereignty. The Act maintains the constitutional boundary. Interpretation of statutes is a matter for the courts; the enactment of statutes, and the amendment of statutes, are matters for Parliament’. It is clear that the HRA is meant to preserve the distinction between interpretation and enactment of statutes.
Page19 10. In Ghaidan v Godin-Mendoza, Lord Nicholls said that S 3 means that the court may have to ‘depart from the intention of the enacting Parliament. It would be possible, therefore, for a court to read words into an Act. This would be consistent with the fact that S 3 ‘requires’ that courts read in words to make an Act compliant with the Convention. There is a limit to this process. Although the court can read in words. Parliament could never have intended that ‘the courts should adopt a meaning inconsistent with
a fundamental feature of legislation. This would cross the line, and show the courts interfering with the sovereign rights of Parliament’. 11. A good example of where a broad interpretation of an Act leads to an acceptable piece of judicial law making is Ghaidan v Godin-Mendoza [2004]. The approach in Ghaidan was legitimate because the interpretation proposed by the House of Lords was consistent with the fundamental policy objectives of the legislation, which were to provide security of tenure. 12. The proportionality test is a powerful mechanism that can allow either the broad interpretation of statutory language or the reading in of words in order to make legislation Convention compliant. However, this test as shown by Ghaidan v Godin-Mendoza, must itself be subject to some constraints. Otherwise, the courts would be moving far beyond the powers given to them by the Human Rights Act as the intention of the Act was to preserve Parliamentary sovereignty. 13. Clearly, where a judicial interpretation moved beyond the policy of legislation, the courts could not effectively legislate in Parliament’s place. It could thus hesitatingly be suggested that after the Human Rights Act 1998 judicial practice is changing to such an extent that judges now have an acknowledged legislative power. This allows them to make legislation convention compliant. Compared to the legislative power of Parliament it is limited, but, the interpretative provisions of the 1998 Act effectively makes judges the legislators of human rights.
G. THE UNIFIED CONTEXTUAL APPROACH 1. This approach is identified by Sir Rupert Cross in Statutory Interpretation (3rd ed, 1995) which involves not so much of a choice between the approaches (i.e. whether to adopt literal, golden or mischief), but more as a progressive analysis, that unifies the traditional approaches taking into account the context, intrinsic and extrinsic aids to interpretation, the purpose of the Act, the changing constitutional position in light of the UK’s entry into the EU and the advent of the Human Rights Act 1998. 2. This unified “contextual” approach is supported by dicta in decisions of the House of Lords where general principles of statutory interpretation have been discussed. 3. This approach may be seen as a combination of the purposive approach to interpretation and the changing constitutional position in light of the UK’s entry into the EU and the advent of the Human Rights Act.
H. PRESUMPTIONS
The court assumes that certain points are implied in all legislation. However, Parliament can go against these presumptions if it sees fit but the wording of the statute must make this clear. These presumptions include the following i. statutes do not change the common law unless the express wording suggests it does. ii. existing rights are not to be interfered with iii. that mens rea is required for criminal offences – But the court will be mindful of the fact that Acts may expressly create strict liability offences. In R v K (2001) the HL held that since Section 14(2) Sexual Offences Act 1956 does not expressly exclude the element of mens rea, the rule of presumption that mens rea is an essential ingredient in criminal law applies. iv. Legislation does not operate retrospectively – Courts presume that the Act will only apply for the future, not to affect past happenings.
Page20 I. AIDS TO INTERPRETATION In addition to the rules of interpretation, there are also intrinsic and extrinsic aids to interpretation. 1. INTRINSIC AIDS Intrinsic aids are those other parts of the Act under consideration that may help to make the meaning of the particular section clear. These are the short title (the name of the act and the year), the long title (includes the purpose), Schedules (additions at the end of the main body of the legislation.), the preamble (a statement preceding the actual provisions of the Act which sets out its purposes, sometimes in full and fulsome detail), if any, definition sections, headings before any section or group of sections, marginal notes, interpretation section of the statute itself and punctuation. 2. EXTRINSIC AIDS (i) Dictionaries and textbooks and journals – may be consulted to find the meaning of a word or to gather information about the views of legal academics. Especially for the literal rule. (ii) Interpretation Act 1978 - This statute provides certain standard definitions of common provisions used in statutes. (iii) Documents produced during the law reform process – for example, Report of a Royal Commission, Law Commission Report (L v DPP (2001) (HL). Good for the mischief rule. Official reports may be considered as evidence of the pre-existing state of the law and the mischief that the legislation was intended to deal with. – Black-Clawson International Ltd (1975).
(iv) The Human Rights Act 1998 – Section 3(1) HRA 1998, where a statutory provision can be interpreted in more than one way, the interpretation, which is compatible with the European Convention should be the one chosen. If it is impossible to find an interpretation, which is compatible with the Convention, the court concerned can make a declaration of incompatibility. a) Earlier case law b) Hansard – see below
J. CONCLUSION 1. The literal rule, golden rule and mischief rule are ‘rules’ of practice, rather than binding common law or statutory rules. 2. The rules of interpretation are inadequate to describe the way in which contemporary judges interpret statutes. Best way to determine how judges deploy the techniques of interpretation to interpret statutes is to consider a number of key cases. It is difficult to generalize how judges go about interpreting statutes. 3. Case illustration – See R v Shayler below. If one considers R v Shayler, it possible to appreciate that SI does not make use of the rules of interpretation. In R v Shayler, Lord Bingham did not use the literal rule, the golden rule or the mischief rule. Lord Bingham looked at the context and purpose of the Act, the reports of the Franks Committee, the White Paper that preceded the passage of the 1989 Act and whether the 1989 Act is coherent with Article 10, as required by the HRA. [Can consider the practice of judges in different cases for a more complete answer.] 4. The conclusion, though, is that the ‘rules’ of statutory interpretation are more properly thought of as judicial practices that are conditioned by numerous factors, and cannot be reduced to a simplistic idea of the application of a canon of construction. 5. They do constrain judicial interpretation, and in this sense they are not a ‘sham’, although there will always remain a certain space for judicial discretion and creativity. REFORM OF STATUTORY INTERPRETATION 1. The Law Commission in 1967 proposed and encouraged a more liberal use of internal and external aids and promoting a general purposive approach. 2. The Renton Committee on the Preparation of Legislation in 1975 made many proposals for improving the procedure for making and drafting statutes, suggesting a simpler style and clear statement of purpose. Many of its proposals remain unadopted.
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K. CASE ILLUSTRATION – HOW DO JUDGES REALLY INTERPRET STATUTES 1. R v Shayler [2002] in part involved the interpretation of the Official Secrets Act 1989. (a) You may have read about the idea that statutory interpretation in the UK is premised on the literal rule. This means that in interpreting a statute the courts will look narrowly at the sections to be interpreted, and not look to outside sources of information. If we look at Lord Bingham’s approach, we will see that it is nothing at all like this. [Lord Bingham did not use literal rule.] (b) He is concerned with the context and the purpose of the Act (the influence of Pepper v Hart to some extent). However, he does not justify this by reference to either the mischief rule or the golden rule. It is necessary to consider this representative act of interpretation. [He does not use the mischief or golden rule either.] (i) First of all, Lord Bingham notes that the Act was passed in conditions of great haste, and that its wide scope has always been an obstacle to its effectiveness. (ii) He then looks at the report of the Franks Committee, which had been asked to review the Act. The committee drew attention, first of all, to a tension between democratic and accountable government, which demanded that documents could be placed in the public domain, and the needs for secrecy in the work of the intelligence community. There is a need to balance these conflicting demands. (iii) He then turns to the White paper that preceded the passage of the 1989 Act and draws attention to the way that the Act deals with the disclosure of official secrets. (iv) The Act makes a distinction between past and present members of the service, and different kinds of information, and then provides different defenses that apply in different situations, but which operate on the practice of achieving official authorization. The point is that the Act attempts to achieve a balance between the need to preserve official secrecy, and the equally compelling need to provide a means of allowing disclosure of documents in an authoritative way. (v) Remember that this act of statutory interpretation goes against Shayler’s claim that he had a public interest defence. (vi) References to rights are also essential to this reasoning. The right, or perhaps liberty to freedom of speech, has been long acknowledged at common law. (vii) However, despite the value accorded to the right at common law, it was not until the incorporation of the European Convention on Human Rights by the Human Rights Act of 1998, that this right was underpinned by statute. (viii) Note that this is not an absolute right, either in domestic UK law or, with reference to Article 10. Lord Bingham has to show the 1989 Act is coherent with Article 10, as required by the HRA. Consider his reasoning:
“The crux of this case is whether the safeguards built into the OSA 1989 are sufficient to ensure that unlawfulness and irregularity can be reported to those with the power and duty to take effective action, that the power to -withhold authorization to publish is not abused and that proper disclosures are not stifled. In my opinion the procedures discussed above, properly applied, provide sufficient and effective safeguards.” (ix) The way in which the Act is interpreted is to note that Article 10 places limits on the freedom of expression. In other words there can be restrictions on freedom of expression; but these restrictions have to be justifiable. (x) What restraints Lord Bingham’s reasoning here, is thus the terms of Article 10 of the HRA, the context of the general law. There is also a ‘political’ input to the extent that Lord Bingham has to balance competing requirements in the law. This may be determined, to some extent, by the judicial reluctance to side with ‘whistle blowers’ from the security services. (xi) So, if one considers R v Shayler, it possible to appreciate that SI does not make use of the rules of interpretation. ... there is no golden rule. Nor is there a mischief rule, or a literal rule, or any other cureall rule of thumb. Instead there are a thousand and one interpretative criteria. Fortunately, not all of these present themselves in any one case; but those that do yield factors that the interpreter must figuratively weigh and balance.
Page23 Chapter3: Judicial Precedent CONTENTS: A. What is Judicial Precedent? B. Precedent in the Supreme Court (House of Lords) C. Precedent in the Court of Appeal D. Implication of the HRA 1998 on Precedent in the Court of Appeal E. Observations to be noted F. How is Flexibility Achieved G. Advantages of Precedent H. Disadvantages of Precedent I. Implications of The Decision in R v James
A. WHAT IS JUDICIAL PRECEDENT? 1. Judicial precedent refers to the source of law where past decisions of judges create law for future judges to follow. This source of law is also known as case-law. Most of the law of tort and contract and important crimes such as murder and common assault are a creation of judges and not Parliament. 2. The doctrine of stare decisis requires that once a decision has been made on how the law applies to a particular set of facts, similar facts in later cases should be treated in the same way. 3. The ratio decidendi of the case refers to the legal reasoning for the decision in a case and is binding on future cases. 4. Obiter dicta refers to all parts of the judgment which do not form part of the ratio decidendi. Obiter dicta refers to things said ’by the way’ which are not binding but may be persuasive on future cases. 5. Persuasive precedents include: (i) decisions of inferior courts (ii) decisions of the Judicial Committee of the Privy Council (iii) statements made obiter dicta (iv) decisions of the European Court of Human Rights (v) decisions from other common law jurisdictions (vi) judgments of parallel courts, where these are not binding, for example the High Court 6. The decision in an earlier case is only binding upon any later case if (i) it contains a statement of law which forms part of the ratio decidendi of the earlier case. The ratio decidendi refers to the legal reasoning for the decision in a case and is binding on future cases. (ii) It was decided by a superior court of a court whose decisions are binding upon the court dealing with the latter case. (iii) It does not contain any significant differences in the facts as compared to the latter case. 7. Precedent emphasizes on certainty, stability, permanence and the accumulated wisdom of the past. 8. The effective system of precedent requires accurate law reporting to provide access to previous judicial decisions and a clear hierarchy of courts. 9. One of the issues to consider is whether the rule as to precedent is a rule of law or simply a rule of practice. The best way is to determine this is to study individual cases.
10. Since the doctrine of precedent works within the context of the court structure with the most precedents coming from the Supreme Court (which replaced the House of Lords in October 2009) and the Court of Appeal, we will first discuss the Supreme Court and then the Court of Appeal before deciding whether precedent is a rule of law or practice.
Page24 B. PRECEDENT IN THE SUPREME COURT (HOUSE OF LORDS) The doctrine of precedent asserts that decisions of the Supreme Court bind all the courts below it in the hierarchy and must be followed. Before the Practice Statement Judicial Precedent 1966 1. Traditionally the position was that the House of Lords was bound by its previous decisions (London Tramsways) as Benditt says ’it would be difficult to maintain that prior to 1966 there was merely a practice of following precedent and not a legally binding rule.’ *In London Tramways, Lord Halsbury acknowledged that cases of individual hardship may result from the House of Lords being bound by its own decision. However, the need for clear general principles over-rides the hardship caused in individual instances.] The Practice Statement Judicial Precedent 1966 2. In the Practice Statement (Judicial Precedent) 1966, their Lordships recognized that too rigid an adherence to precedent may lead to injustice in a particular case and also unduly restrict the development of the law. Their Lordships resolved to modify the way they approach precedent; they will consider that they are normally bound by their previous decision, but, in certain cases they will depart from previous decisions when ‘it is right to do so’. However they should be careful with regard to ’the danger of disturbing the basis on which contracts, settlement of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law’ 3. The Practice Statement reclaimed the concern for the individual case. It asserts that there is no point in having general rules, if these led to injustice in individual instances. 4. Theodore Benditt’s view is that there is a change to the doctrine of precedent... As Benditt argues that if the rule of precedent is simply a rule established by judges, then there should be no difficulty with the idea that judges may change it. Hence the Practice Statement may be regarded as ’a legislative or revolutionary, modification of the then existing rule of precedent’. 5. Although it may be said that the Practice Statement may have made precedent in the House of Lords a rule of practice rather than law, in the years after 1966, it has indeed became clear that departing from previous decisions would only take place in very rare circumstances and that stability would ultimately be preferred to creativity.
6. Some examples of cases where the Practice Statement was utilized. (i) In Miliangos v George Frank, the House of Lords departed from its previous decision Re United Railways of the Havana, arguing that changing the law would enable the courts to keep step with commercial need and would not lead to ‘practical and procedural difficulties.’ The law of damages had to keep pace with modern developments. (ii) In Herrington v British Railways Board (1972) are arguments about social change. Law amended as it was no longer acceptable that a property owner should have limited responsibilities to trespassers. (iii) In R v R, the House of Lords overruled the previous position and recognized that a husband could be found guilty of raping his wife on the basis that the previous decision was wrong and out of date. (iv) In Shaw v DPP the court made a claim that it had a jurisdiction to try offences against good morals, even though Parliament had not legislated to cover such behavior, or the existing law was either ambiguous or silent. In Knuller v DPP, the HL refused to overrule Shaw v DPP even though it was wrong. Does this suggest that different considerations apply in criminal cases? See Shivpuri & Howe discussed below.
Page25 (v) In Shivpuri, the HL held that the concept of objective innocence in Anderton v Ryan was incapable of sensible application in criminal law and invoked the Practice Statement. Departing from a precedent case would lead to uncertainty. But in Shivpuri, this was justifiable as Anderton was a recent decision; settled law had not yet developed. More importantly was the need to correct a fatal error in the law. Shivpuri is a rare example of the House of Lords overruling it own decision simply because it felt the earlier decision was wrong. Usually the House of Lords looks for wider policy considerations. (vi) In R v Howe the House of Lords overruled the decision in Lynch that the defence of duress was available to someone who had been charged with aiding of abetting murder. A review of previous authorities showed that duress had never been available for murder. It was possible to invoke the PS because Lynch could not be justified on authority. Also since Parliament had not acted on the Law Commission’s recommendation to allow a defence of duress, the judges in Lynch should not have taken it upon themselves to reform the law. Lynch was also fundamentally wrong in principle.] 7. The Practice Statement 1966 enables the House of Lords to adapt English law to meet changing social conditions. Implication of decisions in James and Holley 8. Implication of the decisions in James and Holley - In R v James, R v Karimi, the Court of Appeal (Criminal Division) held that the Privy Council decision on provocation as a partial defence to murder in R v Holley effectively overruled the earlier decision of the House of Lords in R v Smith (2001). It cannot
be denied that the decisions in Holley and James fundamentally alter the previous understanding of the way in which the doctrine of precedent operates within the English legal system and affords judges of the House of Lords a second way of altering their previous decisions in addition to the Practice Statement of 1966.
C. PRECEDENT IN THE COURT OF APPEAL The Court of Appeal has to follow Supreme Court (House of Lords) decisions. Denning’s lapsed rule and per incuriam campaigns were rejected by the House of Lords. 1. In Schorsch Meier, the CA argued that circumstances had changed so much since the HL ruling in Re United Havana that the ‘sterling judgment rule’ principle should not apply. Denning argued that since the reasons for the rule no longer exist, the CA was at liberty to discard the rule itself. Lord Simon and Lord Wilberforce rejected this view as it would mean that any court could disclaim any authority of any higher court on the ground that the reason for the rule is no longer applicable. 2. In Broome v Cassell, the CA had attempted to show that the HL had acted per incuriam or incorrectly in the case of Rookes v Barnard. Lord Hailsham said that in the hierarchical system of courts which exist in this country, it is necessary for each lower tier, including the CA to accept loyally the decision of the higher tiers Lord Hailsham’s words return to the notion that far worse than individual injustice is the compromise of general principles. It is for the House of Lords to change its mind; not for the Court of Appeal to decide the issue for it. 3. In James the Court of Appeal, owing to certain exceptional circumstances followed the Privy Council decision in Holley rather than the decision of the House of Lords in R v Smith (Morgan James). However the decision in James is limited to the specific circumstances and does not alter the general rule that the Court of Appeal should follow decisions of the House of Lords. Note that the Court of Appeal emphasized that ’our decision should not be taken as a *general+ license to decline to follow a decision of the House of Lords’. *The CA attempted to justify its decision in James by maintaining that it was not the CA but the Lords of Appeal in Ordinary who have altered the established approach to precedent.] 4. The implications of the HRA on precedent in the Court of Appeal is considered below. See Kay and Others v Lambert London Borough Council below on the implications of the HRA
Page26 The Court of Appeal (Civil Division) is bound by its own decisions. Young v Bristol Aeroplane - even if the CA regretted a previous decision, it was obliged to follow it and recommend an appeal to the House of Lords. This rule was subject to three well established exception laid down in Young v Bristol Aeroplane.
(i) If a previous Court of Appeal decision conflicts with a later House of Lords decision, the House of Lords decisions prevails (ii) If two previous Court of Appeal decisions conflict, the court must choose between them (iii) The Court of Appeal my depart from a previous decision made per incuriam through want of care The Court of Appeal attempted in Davis v Johnson to avoid the rule that the CA was bound by its previous decisions. Denning felt that to avoid all the delay and injustice consequent upon the rule the CA should be able to depart from its previous decisions like the House of Lords. Lord Denning sought to overrule the earlier CA decision on the basis that it was wrong. Denning said - ‘a rule as to precedent (which any court lays down for itself) is not a rule of law at all. It is simply a rule of practice or usage laid down by the court itself for its own guidance and, as such, the successors of that court can alter that practice or amend it or set up other guidelines. Just as the HL did in 1966’. Denning felt that the CA can follow the 1966 PS and depart from its own decisions if it considers them wrongly decided. Denning argued that the CA is not as a matter of law, bound to follow its previous decision. It does so as a matter of judicial comity. The House of Lords upheld his decision but rejected Denning’s argument that the CA could depart from its own decision if it considered itself to be in error and strongly said that the Court of Appeal was bound by its own decisions subject to the Young exceptions. Lord Salmon and Lord Diplock cited the concluding words of the 1966 Statement ’This announcement is not intended to affect the use of precedent elsewhere than in this house.’ Davis v Johnson is a unique case. Although Lord Denning’s arguments make a compelling case for the Court of Appeal to respond to the demand for justice, the House of Lords effectively re-asserted that there were no exceptions to the priority of general procedural rules. Denning criticized the rule that the CA was bound by its own decision as it may be that an appeal is never made to the House of Lords or that there is a long delay before the HL has an opportunity to overturn the effect of an incorrect decision. It may also be that the individual lacks the financial means to bring the appeal to the House of Lords. Wealthy litigants can pay off appellants and so perpetuate a decision erroneous in law. Further in Davis v Johnson, the delay that an appeal would cause would add to Ms.Davis hardship. Denning argued that Young v Bristol Aeroplane was not a correct statement of law as when the Court was set up in 1873, it was the final appellate court (and had inherited the jurisdiction of the Exchequer Chamber and the Court of Appeal in Chancery which had the power to review their own decisions) as the jurisdiction of the House of Lords was not established until 1875. Arguments that the CA should be allowed to depart from its previous judgments (i) Court of Appeal hears more cases than the House of Lords and is therefore the final appeal court for many litigants, (ii) the CA would probably only use the power on rare occasions like the HL has used the Practice Statement
(iii) The power given to the CA to refer a decision to the HL when they disagree with the decision that they are bound to make by precedent may siphon away public funds. Arguments that the CA should not be allowed to depart from its own decisions. (i) The lower courts would be left in confusion. For instance, a judge in a county court would not know which Court of Appeal case stated the correct law. (Lord Denning argues that the lower court will simply follow the later decision, based on the principle that as long as the latter case contains a full consideration of the earlier cases, it was the preferable authority.) (ii) It will create more uncertainty and that the system of precedent would be undermined and the law would become unpredictable. There was a risk that there would be a ’plethora of conflicting decisions’ which would lead to great confusion in the law. (iii) CA should leave quasi-judicial development of the law permitted by the PS 1966 to the HL. Other Exceptions to rule that the Court of Appeal is self binding 1. In Doughty v Turner Manufacturing Co. Ltd, the CA chose to follow a JCPC decision (that of The Wagon Mound (No.2) (1967) rather than its own precedent which had been set in Re Polemis (1921). 2. Where there is a change in the rule of international law (Trandex Trading Co. v Centra Bank of Nigeria) 3. Possibility that as a consequence of Section 3 of the European Communities Act 1972, the Court of Appeal can ignore previous decision of its own which is inconsistent with EU law or a later decision of the ECJ. 4. Owing to Section 2 of the HRA 1998 – where the earlier CA decision prior to the HRA conflicts with the provisions of the ECHR. ] The Criminal Division of the Court is traditionally more relaxed on stare decisis, especially where an individual’ liberty is at stake. However in R v Simpson, Lord Woolf said that the power to depart from earlier decisions was not akin to the power of the House of Lords under the Practice Statement 1966.
Page27 D. IMPLICATION OF THE HRA 1998 ON PRECEDENT IN THE COURT OF APPEAL 1. Section 2 of the HRA 1998 requires that English courts to take into account (though they are not bound to follow) judgments, decisions and opinions of the European Court of Human Rights. This may affect decisions made before the HRA 1998 came into force. 2. In Kay and Others v Lambert London Borough Council (2006) Lord Bingham said that certainty was best achieved by adhering to the rules of binding precedent within the domestic hierarchical structure. The HL held that the CA was correct in following the HL decision in Harrow LBC Qazi which was
inconsistent with the decision of the European Court of Human Rights in Connors v UK. It would only be in extreme cases that the Court of Appeal could overrule a decision of the House of Lords. Lord Bingham offered some guidelines that would help the court to consider when it could depart from the House of Lords, and follow a case of the ECHR: (i) The Strasbourg case would have to have been decided after the domestic case (ii) The case would have to put forward a clear interpretation of both the Convention law and UK law (iii) There is an incompatiblity between domestic and convention law and the domestic law is not based on a Act of Parliament Lord Bingham’s guidelines suggest that the instances when the Court of Appeal could depart from a precedent of the House of Lords are thus rare, applying only in very limited circumstances. In other words, a ’mere tension or possible inconsistency’ would not justify the overturning of a precedent. Lord Bingham’s guidelines are pragmatic. The law would be left in a chaotic state of differences of opinion in the lower courts on the compatibility issue justified departure from established rules of precedent. Kay can be read as a re-assertion of the conventional doctrine of precedent in the wake of the HRA, in the same way that the House of Lords in Davis reasserted conventional doctrine against Denning’s creative approach. *Lord Bingham’s approach is also consistent with Strasbourg jurisprudence which allows a ’margin of appreciation’ to national courts in interpreting Convention Rights. This places primary responsibility on domestic courts as the correct forums for the determination of how European Human Rights law is to apply in a domestic context.] 3. D v East Berkshire Community NHS Trust (2004) – CA held that a HL decision x (Minors) v Bedfordshire County Council was inconsistent with the HRA. The HL agreed with the argument of the CA, accepting that the justification for the ruling in the case could no longer stand. However there were other important factors; (i) X had been decided before the HRA (ii) The case had made no reference to the Convention and the plaintiffs in the case later were successful in pleading a breach of Article 3 of the ECHR. This combination of factors allows Lord Bingham to present this case as exceptional, and thus entirely coherent with his guidelines.
Page28 E. OBSERVATIONS TO BE NOTED
Lord Nicholls said that the established practice of judicial precedent derives from the common law According to him; this means that the judges have the power to modify this practice. Cases such as James, D and Kay may inspire lower courts to decide that they can also modify the doctrine of precedent and decline to follow a decision of the higher court in circumstances other than those described in those cases. Judges may be more willing than some might think to disregard established rules of precedent. In Damydon Holdings Ltd v Solland International Ltd, a High Court case, Collins J. said that he would have applied a Privy Council decision in preference to one of the Court of Appeal, had he considered this necessary in the interests of justice. As he pointed out, English courts had previously generally regarded Privy Council decisions as merely of ‘persuasive’ authority but there had been some notable exceptions to this approach, for example, in relation to the significance of the Privy Council decision in The Wagon Mound. Judges may be particularly likely to ignore the doctrine of precedent when they think it would force a party to go to the House of Lords in order to have a foregone conclusion confirmed.
F. HOW IS FLEXIBILITY ACHIEVED How is the law to develop and change to cater for changed circumstances and changing social needs if cases are always to be decided according to ageless precedent? There are certain judicial tools available to ensure that the law continues to develop. 1. Since ratios are determined retrospectively, judges do have flexibility in applying the precedent system. It is open to later judges to avoid precedents by declaring them to be no more than obiter statements. 2. Distinguishing occurs where a judge holds that the ratio of a previous case would not find application in the case before the court because the material facts are different. In Merritt v Merritt (1971) the court distinguished Balfour v Balfour (1919). In Balfour v Balfour it was held that a wife could not claim against her husband for breach of contract as there was no intention to create legal relations. However in Merritt v Merritt the wife was successful as the facts were different as here although the parties were husband and wife, the agreement was made after they had separated and the agreement was in writing. Hence it was not just a domestic arrangement but a legally binding contract. 3. Overruling - Overruling occurs where a judge believes that the ratio decidendi in a previous case is no longer good law and therefore does not follow it. A higher court may overrule a decision made in a earlier case by a lower court. For example the House of Lords overruling a decision of the Court of Appeal. Overruling also occurs when the House of Lords uses its powers under the Practice Statement to overrule a past decision of its own. Overruling does not extend to affect the parties in the authorities overruled. 4. Original precedents - If the point of law in a case has never been decided before, then whatever the judge decides will form a new (original) precedent for future cases to follow. The system of precedent
allows ‘original precedents’ to be created to deal with difficult new legal dilemmas - ReA, Airedale NHS, Donoghue v Stevenson. 5. The possibility of a later court extending or modifying the effective ambit of a precedent - Judges have a tendency continuously to extend existing precedents to fit new situations. An established principle in a precedent could be adapted to particular circumstances – for example, the rule in Hedley Byrne v Heller developed out of Donoghue v Stevenson. 6. Section 2 Human Rights Act 1998 requires the UK courts to take into account judgments, decisions and opinions of the European Court of Human Rights. The HRA 1998 gives the CA latitude to effectively overrule decisions of the HL which were decided before the HRA came into effect and in conflict with ECHR.
Page29 G. ADVANTAGES OF PRECEDENT 1. Provides for a degree of certainty and predictability since like cases are treated alike. This enables people to plan ahead. The House of Lords Practice statement points out how important certainty is. 2. Saves time and money as cases do not have to be reargued if there is a precedent and lawyers can advise clients on the likely outcome based on previous cases. 3. Degree of flexibility as the House of Lords Practice Statement and other methods of avoiding precedent for example distinguishing enable the law to develop and adapt, thus keeping up with modern times 4. Has enabled whole areas of law like contract and tort to develop with little statutory intervention. 5. The system allows ‘original precedents’ to be created to deal with difficult new legal dilemmas - Re A, Airedale NHS v Bland (i) Airedale NHS Trust v Bland – on the facts the court held that the life support machine could be switched off when a person was in a persistent vegetative state. (ii) Re A - on the facts the court held that the Siamese twins could be separated by an operation when the hospital recommended this despite the parent’s objections. . 6. It has an advantage over legislation as it responds to factual situations that have occurred. Hence the law can be applied in a practical and thorough manner.
H. DISADVANTAGES OF PRECEDENT
1. The system is rigid as bad judicial decisions may be perpetuated for a long time until they come before a court high enough to have the power to overrule them. Change in the law will only take place if parties have the courage, the persistence and the money to appeal their case. 2. There are a large number of decided cases and more are added all the time. Judgments are often long and unclear, and so finding the ratio is not an easy task. 3. The use of distinguishing to avoid past decisions can lead to ‘hair-splitting’ and illogical distinctions so that some areas of the law have become very complex. 4. Retrospective effect - unlike legislation, considered unfair to the losing party in the case who could not have known what the law was before they had acted. [The retrospective effect of precedents has been made abundantly clear in the House of Lords case of Kleinwort Ltd v Lincoln City Council where the House of Lords abolished the rule that money paid under a mistake of law could not be recovered. Retrospective effect means that once the law has been changed it applies not only to the case in hand but to all subsequent cases coming before the courts even though the events in question occurred before the previous authority was overruled. ] 5. Judges like Lord Denning suggest that the restrictions imposed by the precedent system can cause injustice. 6. Promotes laziness as a judge only has to refer to previous decisions he does not have to fully consider the matter personally. 7. Undemocratic - unlike the legislator the judge is not answerable to the people.
I. IMPLICATIONS OF THE DECISION IN R V JAMES 1. In R v James the CA (Criminal Division) held that the Privy Council decision on provocation as a partial defence to murder in R v Holley effectively overruled the earlier decision of the HL in R v Smith (2001). 2. The CA held that the Privy Council can in exceptional circumstances overrule previous precedents of the House of Lords. According to the Court of Appeal in James, these exceptional circumstances arose as a result of the following attributes in the case: (i) All nine of the Lords of Appeal in Ordinary sitting in Holley agreed in the course of their judgments that the result reached by the majority clarified definitively English law on the issue in question (ii) The majority in Holley constituted half the Appellate Committee of the House of Lords (iii) In the circumstances the result of any appeal on the issue to the House of Lords was a foregone conclusion.
3. In R v James, the Court of Appeal concluded that the majority of the Law Lords, acting in their capacity as members of the Judicial Committee of the Privy Council, had determined that there are circumstances in which a Privy Council decision can take precedence over one of the House of Lords. Lord Phillips said that we do not consider that it is for this court to rule that it is beyond the powers their powers to alter the common law rules of precedent in this way.
Page30 4. It cannot be denied that the decisions in Holley and James fundamentally alter the previous understanding of the way in which the doctrine of precedent operates within the English legal system and affords the judges of the HL a second way of altering their previous decisions in addition to the PS 1966. However, the decision in James is limited to the specific circumstances and does not alter the general rule that the Court of Appeal should follow decisions of the House of Lords. 5. The decision in James: (i) Establishes that a decision of the Privy Council can overrule a House of Lords decision, and lays down certain principles that stipulate when a court should follow the Privy Council, as opposed to the House of Lords. (ii) It determines that the judge in a provocation case should direct the jury in accordance with Holley. (iii) However the decision in James is limited to the specific circumstances and does not alter the general rule that the Court of Appeal should follow decisions of the House of Lords. Note that the Court of Appeal emphasized that our decision should not be taken as a [general] license to decline to follow a decision of the House of Lords’. We could say according to Theodore Benditt’s view we should say that the change in the doctrine of precedent announced in James is revolutionary or legislative or whatever, but there is no really special problem about this ‘since the change was made by officials within the system who have the authority to decide cases according to reason.’ Was the development in James brought about in a legitimate manner? The CA attempted to justify its decision in James by maintaining that it was not the CA but the Lords of Appeal in Ordinary who have altered the established approach to precedent. Unfortunately while it seems that Lord Phillips was correct to conclude that a decision had been taken to use the appeal in Holley to reconsider Smith (Morgan) his interpretation of Holley does not explain why the Privy council decided to alter the establish approach to precedent.
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Chapter4: Supreme Court CONTENTS: A. Introduction B. Why was the Supreme Court Created? C. The Supreme Court’s Jurisdiction D. The Location of the Supreme Court E. The Composition of the Supreme Court F. Public Scrutiny of Supreme Court Appointments G. Supreme Court and Parliamentary Sovereignty H. The Impact of the Human Rights Act I. Some Views and Opinions on the Supreme Court J. Conclusion K. Supreme Court Update 2011
A. INTRODUCTION 1. The Supreme Court began operation on 1 October 2009 and marks an important change in the constitutional history of the United Kingdom. Judicial authority moved away from the House of Lords (technically the Appellate Committee of the House of Lords). The judicial role of the House of Lord evolved over more than 600 years, originally from the work of the royal court. 2. The Supreme Court is now the highest court in the UK. The court is staffed by 12 “independently appointed judges”- Justices of the Supreme Court. 3. The new Supreme Court will be much more open than its predecessor. With its recognizable address, the Supreme Court will be easy for visitors to find. It will issue easily understood summaries of its judgments. 4. Openness, transparency and accessibility to the public are the watch words of the new Court. It will be, in the words of its Chief Executive, ‘there to educate and inspire, as well as to adjudicate’
B. WHY WAS THE SUPREME COURT CREATED?
1. Early attempts to create a supreme court can be dated to the 1830’s. The celebrated writer on the English constitution, Walter Bagehot, noted that the nation’s highest court “ought not to be hidden beneath the robes of the legislative assembly but, ought to be a great conspicuous tribunal”. 2. There are sound constitutional reasons for the creation of a supreme court. It is said that the Supreme Court will provide greater clarity in the separation of powers between the legislature and the judiciary. The Supreme Court has been established to achieve a complete separation between the United Kingdom’s senior Judges and the Upper House of Parliament, emphasizing the independence of the Supreme Court and increasing the transparency between Parliament and the courts.”
Page32 C. THE SUPREME COURT’S JURISDICTION 1. The new Supreme Court receives the adjudicative powers previously enjoyed by the law lords and is the highest domestic appeal court for the UK in respect of civil cases, and for England, Wales and Northern Ireland in respect of criminal cases. The court’s jurisdiction extends over appeals on “matters of law raising issues of great public importance. 2. The functions of the Supreme Court do not substantially differ from the House of Lords. 3. The key provisions that brought the Supreme Court into being can be briefly summarised. Section 23 of the Constitutional Reform Act 2005 (CRA) establishes the Supreme Court of the United Kingdom. The Court replaces the House of Lords in its judicial capacity and is vested with: (a) the former jurisdiction of the Appellate Committee of the House of Lords under the Appellate Jurisdiction Acts 1876 and 1888 (CRA s.40, subs.2 and 6); (b) jurisdiction in relation to devolution matters, transferred from the Judicial Committee of the Privy Council (CRA s.40 (4) (b)); and (c) jurisdiction transferred to it under various other statutes (CRA s.40 (4) Sch.9); e.g. to hear final appeals for the UK overseas territories and Crown Dependencies, and for those Commonwealth countries that have retained the appeal to the Queen in Council or, in the case of republics, to the Judicial Committee. No change has been made to the scope of the jurisdiction so transferred. 4. The devolution jurisdiction covers matters concerning: the legislative competence of the Scottish Parliament under the Scotland Act 1998, the Northern Ireland Assembly under the Northern Ireland Act 1998, or the Welsh Assembly under the Government of Wales Act 2006; or the exercise of a function by a member of the Scottish Executive, a Minister in Northern Ireland or Northern Ireland department or by the Welsh Ministers. In the exercise of this jurisdiction, the Supreme Court’s supremacy is affirmed by S 41 (3), which states that a decision of the Court on a devolution matter is binding in all legal proceedings (except on the Court itself, when making such a decision).
5. One issue is that the new court is really just a final court of appeal, so why give it the title of a Supreme Court, which is usually a constitutional court, often with the right to strike down legislation that it deems against the constitution. When deciding upon the legality or applicability of legislation the Justices of the Supreme Court, like the Law Lords, cannot force the government to overturn or amend legislation. They can merely shoot powerful, persuasive glances. 6. The Supreme Court is limited by Parliamentary sovereignty. This is why it cannot challenge Acts created by the Parliament as the supreme law making body. Connor Gearty has been critical of the new Supreme Court saying that “the Court is not to be allowed to do exactly the kinds of things that mark a court out as Supreme. He said that It is like giving the referee a fabulous new kit and great hi tech support but no whistle with which to subject the fight between the two opposing teams to any rules other than those that they themselves choose to follow.’ 7. Gearty notes that the Supreme Court does not have the power to strike down Acts of Parliament or to champion the Human Rights Act. Compared to other supreme courts, in nations with a sovereign constitution, the Supreme Court of the UK thus appears a rather feeble body. The question to consider is whether the Court will grow beyond its rather limited beginnings. Will the new title encourage a different kind of judicial attitude than in a Court of Appeal?
D. THE LOCATION OF THE SUPREME COURT 1. The court’s publicity makes a great deal of the physical location of the institution saying it is “ highly symbolic of the United Kingdom’s separation of powers, balancing judiciary and legislature across the open space of Parliament Square, with the other two sides occupied by the executive (the Treasury building) and the church (Westminster Abbey).” 2. Organizations draw strength from where they are as much as from what they are empowered to do. In the United States, the era of judicial activism (of first a reactionary and then a progressive nature) coincided with the decision to build and then the move in 1935 into what the Oxford Companion to the US Court describes as ‘a grandiose temple of white marble, with a central portico and matching wings’. Such a workplace seemed positively to demand case-law commensurate to its greatness. Perhaps the location of the new Supreme Court will have will also demand case-law commensurate to its greatness as was the case with the US Supreme Court.
Page33 E. THE COMPOSITION OF THE SUPREME COURT 1. The court is staffed by 12 “independently appointed judges”- Justices of the Supreme Court.
2. Gearty stresses that – in its composition- the court represents a break with the past: the Supreme Court Justices are not “anachronistic” but more in keeping with their “American, Canadian, Irish, South African, Indian colleagues”. However, they lack the powers their colleagues have. 3. Here there will be a body of men and (so far) one woman now proper Justices like their American, Canadian, Irish, South African, Indian colleagues (to mention just a few places among many). With one huge exception however – the UK justices will be unable to strike down any primary legislation at all: how supreme is that? And this then begs the key question: how long will it be before the justices buck against remaining in such an obviously lower tier in comparison with their foreign counterparts, developing their powers as a matter of corporate pride as much as constitutional principle?
F. PUBLIC SCRUTINY OF SUPREME COURT APPOINTMENTS 1. Unlike the US, the highest court in Britain does not rate the same level of public interest. The UK does not have political appointments or televised hearings of nominees. 2. There is far greater public scrutiny of the appointments in the U.S. Supreme Court as compared to the almost complete silence appointment to the highest judicial positions receives in the UK. 3. There is far more media coverage on the American judicial scene than the UK judicial scene even in the British press. Should this be seen as a sad failing of the British public and media to appreciate the importance of our top court and its judges? Or is it the reality that the senior judiciary plays a far less significant role in our lives, political and social, than its US equivalent, and deserves the scant attention it gets? More crucially, our soon-to-be justices of the Supreme Court do not, and will not, have the power to overturn laws passed by parliament. To put it bluntly, our judges just aren’t as influential as theirs.
Page34 G. SUPREME COURT AND PARLIAMENTARY SOVEREIGNTY 1. The Supreme Court is limited by Parliamentary sovereignty. This is why it cannot challenge Acts created by the Parliament as the supreme law making body. 2. However, it might be possible to turn the tables on Parliament, by arguing that “parliamentary sovereignty is itself a legal artifice”. Parliament is supreme because the judges recognize it as such: “what the judges have made, they can unmake, or at least vary.” 3. Lord Steyn has described the sovereignty of Parliament as a “construct of the common law”. Since the judges had created the principle, it was not unthinkable that they might have to modify it. He said that “In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts ... a new Supreme Court may have to consider whether this is a constitutional fundamental
which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish”. 4. Evidence is supplied by the ruling in 2005 on the fox hunting ban. The House of Lords suggested that “there may be basic values ... which not even an Act of Parliament could lawfully contradict.” But, what are these basic values? One might speculate that they are “respect for human rights say as well as a right of access to the courts and perhaps also a commitment to the rule of law”. 5. The United Kingdom’s Supreme Court still is a new institution one possibility some felt is that an activist approach could lead to the end of the old convention of the supremacy of Parliament. 6. Gearty comments envisage a role for the Supreme Court that links it to a constitutional revolution”where judges effectively assert a common law constitution founded on human rights. This would clearly be a significant shift in the balance of power away from Parliament and to unelected judges. Whilst this is not necessarily incompatible with an idea of democracy – and given the present public mood which distrusts politicians- such a political and legal development might not be too farfetched. 7. When Canada, for example, created The Supreme Court in Canada it did change the political balance of power. However, in a 2010 decision the UK Supreme Court seemed to consciously reinforce the power of Parliament. 8. In Ahmed and others v HM Treasury al-Ghabra v Same, R (Youssef) v Same [2010], the Supreme Court ruled that a Treasury order (i.e. a regulation made by the Treasury Department that did not go through Parliament) which freezes the assets of terrorist suspects was ultra vires. Lord Hope, the Deputy President of the Supreme Court, declared the following: ‘even in the face of the threat of international terrorism, the safety of the people is not the supreme law. We must be just as careful to guard against unrestrained encroachments on personal liberty.’ But if this seemed to be an activist approach Lord Hope also said this, ‘This is a clear example of an attempt to adversely affect the basic rights of the citizen without the clear authority of Parliament,’ and this: ‘Nobody should conclude that the result of these appeals constitutes judicial interference with the will of Parliament. On the contrary, it upholds the supremacy of Parliament in deciding whether or not measures should be imposed that affect the fundamental rights of those in this country.’ So basically if Parliament did launch ‘unrestrained encroachments on personal liberty’ it would have to do so clearly!
H. THE IMPACT OF THE HUMAN RIGHTS ACT 1. Senior courts can declare legislation incompatible with the European Convention on Human Rights, though the incompatible statute remains in force until Parliament chooses to change it. 2. So far, the government has always sought to put matters right. But there is a less understood power in the Human Rights Act 1998 that may prove even more effective in the hands of the judges. This is Section 3 of the Act, which says that – so far as it is possible to do so – all legislation must be given effect
in a way that is compatible with the Human Rights Convention. With powers to “read down” legislation, as lawyers describe this process, who needs to strike it down? 3. In Ghaidan v Mendoza, the court interpreted the Rent Act in a way to make it compliant with the convention. In 2004, they decided by a majority of four to one that the courts were required to read the phrase “surviving spouse” in the Rent Act as including the survivor of a gay couple. The result was to give a same-sex partner the same rights to take over a protected tenancy as the survivor of married or cohabiting heterosexual couples. One of the law lords said the courts would not be allowed to adopt a meaning that is inconsistent with a “fundamental feature” of the legislation. But Zwart says that approach taken by the majority was “an amendment in everything but name”. Not surprisingly, Lord Millett, the dissenting judge, feared that such a purposive approach might subvert the supremacy of Parliament.
Page35 I. SOME VIEWS AND OPINIONS ON THE SUPREME COURT 1. Despite the creation of the Supreme Court, little debate has taken place about what sort of Supreme Court Britain has and should have. 2. On one view, the law lords are simply moving across Parliament Square into a new building: why should that make any difference to the way they decide their cases? But even the former minister responsible for implementing the reform, Lord Falconer, believes that the court will strengthen the judiciary in Britain and make the judges more willing to take on the executive. 3. Lord Neuberger, a judge who recently gave up his seat on the Supreme Court to take a senior position one tier down, pointed to the law of unintended consequences. “The danger is that you muck around with a constitution like the British constitution at your peril because you do not know what the consequences of any change will be.” 4. Lord Neuberger has told the BBC that Britain’s Supreme Court could become more powerful than the House of Lords that it replaced. He says there is a real risk of “judges arrogating to themselves greater power than they have at the moment”. 5. The new court president’s Lord Phillips said such an outcome was “a possibility”, but was “unlikely”. 6. Lord Neuberger’s fears were also dismissed by Lord Turnbull though Lord Turnbull accepted that the Supreme Court justices might become more assertive and more difficult for a future government in their new home across Parliament Square. 7. Lord Bingham, a former senior law lord said there was no question of the Supreme Court justices having a “rush of blood to the head” and throwing their weight around. He was supported by the new court’s president Lord Philips.
J. CONCLUSION 1. The great change is that the Justices are no longer members of Parliament, but then the Law Lords were full-time Judges, who did not vote on legislation passed within the chamber. 2. The legislation that created the United Kingdom Supreme Court gives no clue as to what sort of court Parliament wanted it to be. Although the actual business and workings of the justices will be essentially the same as those of the Law Lords, it will be watched closely to see if the move across Parliament Square will affect the way its decides cases. 3. The first advocate to address the Supreme Court is reported to have told the Justices that theirs had been ‘a short walk across Parliament Square but a giant leap for the judicial system’. But others have criticised the change, arguing that it is largely a cosmetic exercise. 4. No one suggests yet that the UK Supreme Court will follow its namesakes in the United States and Israel by declaring statutes unconstitutional. Especially owing to the doctrine of parliamentary sovereignty. 5. Lord Collins has predicted that his colleagues will evolve over time into a different type of body – “perhaps not so pivotal as the American Supreme Court, but certainly playing a much more central role in the legal system and approaching the American ideal of a government of laws and not of men”. 6. The judges have no need to assume or invent new powers. If Falconer is right in predicting that the Supreme Court will be bolder in taking on the government and vindicating the freedom of the individual, it already has all the tools it will need. 7. How activist the Supreme Court proves to be is likely to depend very much on how much Britain’s next government respects the rule of law.
K. SUPREME COURT UPDATE 2011 General (i) It is the new highest court in the United Kingdom, acting as a final court of appeal in cases of major public importance. The Law Lords, as they were known when they were housed in a corridor in parliament and sat as the Appellate Committee of the House of Lords, are now comfortably at home in the expensively refurbished Supreme Court. The Judicial Committee of the Privy Council, staffed mainly by the same judges as those who sit in the Supreme Court but having a separate jurisdiction, has also moved into the same building. (ii) Judges in the Supreme Court will now be known as the Justices of the Supreme Court. However it has been recently decided that they will now carry the title of lord and lady.
(iii) What that means in practice is that its 12 justices will be the "final arbiters" between citizens and the state, the ultimate check and balance that law is correctly, and fairly, applied. (iv) The building, just across the square from the Houses of Parliament, stands as a symbol of the separation of powers and the independence of the judiciary. But has the change of venue also seen a change in the role and power of the court? (v) The casework that will be dealt with by the Supreme Court is exactly the same as that which came before the justices when they sat as Law Lords in Parliament.
Page36 (vi) It has certainly been a busy first year for the United Kingdom's highest court of appeal. Sixty-seven appeals have been heard covering everything from bank charges, the freezing of suspected terrorists' assets and human rights claims by gay asylum seekers. (vii) The varied caseload illustrates the critical role of the court in deciding points of law of general public importance covering all aspects of the life of the citizen. (viii) The new court has made a huge effort to promote transparency and understanding. Thousands of members of the public visit it and its website each month. Full judgements and summaries of them are easy to find, and uniquely within the UK, the court routinely allows television cameras. Its judgements are frequently screened, though as yet no broadcaster has chosen to follow an entire appeal. (ix) Unlike its US counterpart, the UK Supreme Court has no specific statutory power to strike down legislation it considers unlawful, but there is in little our constitutional arrangements to stop it taking that power to itself. The president of the court, Lord Phillips, does not entirely discount the possibility. "If parliament did the inconceivable, we might do the inconceivable as well," he says. He said that if Parliament enacted a piece of legislation that was opposed to some fundamental constitutional principle the Supreme Court might react. (x) Lord Steyn has said that because parliamentary sovereignty was a common law construct, created by the judges, the judges could also qualify its extent. Lord Steyn defined ‘a true constitutional state’ as one which has ‘a wholly separate and independent Supreme Court which is the ultimate guardian of the fundamental law of the community.’ (xi) The new court does seem subtly unlike its predecessor - more open, more transparent and stronger.
Appointments to the Supreme Court (i) To become a Supreme Court justice you must have been a senior judge for at least two years or a qualified lawyer for at least 15 years. When there is a vacancy, the justice secretary, also known as the
Lord Chancellor, will set up a selection commission. It will consult senior judges who are not putting themselves forward for the court, along with the justice secretary and key figures in Scotland, Wales and Northern Ireland. The justice secretary can accept or reject a nomination. The prime minister then makes a final recommendation to the Queen, who makes the appointment. (ii) The first new Justice to be appointed, in the summer of 2010, was Sir John Dyson, a former judge of the Court of Appeal.
Diversity and new appointments to the Supreme Court (i)It seems that the next two appointments to the Supreme Court will be men - Sir Nicholas Wilson and Jonathan Sumption QC. With the exception of Baroness Hale, the Supreme Court is populated by white men. When it comes to the diversity of its members, the supreme court continues to lag far behind its overseas counterparts. Since Lady Hale's elevation to the then House of Lords in 2004, all of the subsequent eight appointments to the supreme court have been men. In contrast, four of the nine members of the Canadian Supreme Court, three of the nine justices on the US Supreme Court, three of the seven judges of the high court of Australia and 19 out of the 47 judges on the European Court of Human Rights are women. Furthermore, none of the members of the UK Supreme Court (or the court of appeal for that matter) has a black or minority ethnic background. (ii) Assuming that judicial qualities are, on the whole, evenly distributed between men and women, appointment on merit should lead to (more or less) equal numbers of male and female judges, precisely because women are just as likely as men to possess the attributes of good judges. However, the reality is that this will happen only if the pool from which appointments are made is itself gender-balanced. As long as we continue to select only from legal professions in which women continue to find it difficult to progress, appointment "on merit" will do little more than replicate this imbalance. (iii) So what are the options? The answer need not be simply to parachute women into the shortlist through the use of quotas or targets. Nor should we abandon the search for "the best", the goal of appointment on merit. The way forward lies in recognising that, all other things being equal, a more diverse judiciary is a better judiciary. (iv) Appointment on merit requires us to look for merit wherever and however it is to be found. This requires, first, that we acknowledge – with Hale – that a judiciary is enriched by the diversity of its members, by incorporating a broader pool of experiences, insights and attributes. (v) The quest for the best appointments may be thrown off track by misplaced assumptions as to how and where these are to be found. Should the rumours prove true, what the latest round of appointments shows is that there is a danger that we end up associating judicial quality with the attributes possessed by those who have traditionally held such positions, the result being that we see merit only in its familiar guises.
(vi) Direct appointments to the Supreme Court bench may yet prove to be an effective way of addressing some of these problems. However, if the government is truly committed to a more diverse judiciary, then it needs to do more to ensure that the highly qualified women, who are out there and are eligible for judicial appointment, are promoted to the Supreme Court bench. After all, when it is suggested that the appointment of yet another white, male barrister – albeit one who has not previously held a judicial appointment – might be welcomed for the "diversity" it brings, then something is amiss.
Page37 Is independence of the SC threatened by the way it is funded? (i) The president of the UK's Supreme Court has warned that its independence is threatened because of the way it is funded by the government. Lord Phillips said the court was dependent on what it could persuade the Ministry of Justice (MoJ) to give "by way of contribution". He argued that the court's budget should be pre-set and ring fenced. (ii) Justice Secretary Ken Clarke said it was a "storm in a teapot" and "of course" the judiciary was independent – completely free of political interference. The aim of the Supreme Court was to emphasise the separation between Parliament's lawmakers and the judges charged with overseeing legislation. (iii) The Supreme Court’s Chief executive has said that budget cuts could leave the Supreme Court unable to function.
Some Conclusions on the Supreme Court (i) The Supreme Court is in many respects not so very new at all – its Justices at the point of transition were the same Lords of Appeal who sat in the House of Lords; the Court’s jurisdiction is more or less exactly the same as that of the House of Lords. The substance of its judicial work, building upon recent tendencies already becoming apparent in the House of Lords, has shifted markedly towards public law, with some high profile cases having a distinctly ‘constitutional’ flavour. (ii) But when we look at the new Court from a ‘law and administration’ perspective some of the real differences become much more apparent. The constitutionally unsatisfactory anachronism of a top court being a parliamentary committee, administered in accordance with parliamentary standing orders, has given way to a modern, business like non ministerial department, not only detached from Parliament, but also asserting its distance from the executive (the Ministry of Justice) and functioning very much as a UK-wide tribunal rather than just an English one. (iii) The UK Supreme Court has joined a fraternity of institutions with which it shares a lot of characteristics. Although the SC cannot declare legislation unconstitutional, one can perhaps detect in
the recent pattern of House of Lords and Supreme Court decisions, an appetite on the part of the Justices – encouraged by some continuing developments in EU and human rights law – to begin to get to grips with constitutional issues that previous generation of judges would have regarded as completely off limits.
Page39 Chapter5: Do Judges Make Law CONTENTS A. Introduction B. The Declaratory Theory – Judges Do Not Make law C. Judges Do Make law D. Conclusion
A. INTRODUCTION Traditionally the declaratory theory suggests that judges do not make law. However it is now clear that judges do in fact make law. We will begin by looking at the declaratory theory before looking at authorities and arguments that demonstrate that judges do in fact make law.
B. THE DECLARATORY THEORY–JUDGES DO NOT MAKE LAW 1. Within the constitutional division of powers in the UK, it is the function of the legislature to make law and merely the function of the court to apply that law. 2. William Blackstone’ declaratory theory of law suggests that judges do not make law, but merely by the rules of precedent, discover and declare the law that has always been. The declaratory theory thus preserves the doctrine of Parliamentary sovereignty. 3. By the declaratory theory of William Blackstone, judges are only ’law finders’ (they are only to declare what the law is and therefore are not law creators. 4. There is a tendency to deny that judges make law in order to stress stability and certainty as the primary values of the doctrine of precedent. Stability and regularity in decision making required each court to respect its place in the hierarchy of the courts. Deviations could not be tolerated. Also judges should not trespass on the province of Parliamentary legislation.
5. Some judges believe that the creation of law should be left to Parliament. (i) For example Lord Simon’s dissenting speech on judges making law in Miliangos v George Frank. (ii) Sir Robert Megarry in Malone v Metropolitan Police Commissioner (No.2) declined to develop the common law to fill the vacuum although he recognized the lacuna in the law.
Arguments in support of the declaratory theory 1. To allow unelected judges to make law would be inconsistent with the principle of democracy. 2. Farrar argues there is a risk involved if the court is too active in dynamic law-making in what is construed to be the political arena. 3. Lord Devlin states that judges should not become social reformers or professionally concerned with social justice. They might not administer the law fairly if they were constantly questioning its justice or their mind about its improvement. 4. Judges come from a privileged social background, unrepresentative of society. They do not appreciate the full economic and social implications of their decisions. 5. Where public opinion is sharply divided, judges should leave the matter for Parliament for change. 6. Certainty must be upheld in cases of contract, property settlements, fiscal arrangements and in criminal law.
Page40 C. JUDGES DO MAKE LAW 1. Judges make law as Lord Browne-Wilkinson said in Kleinwort Benson v Lincoln City Council. ‘The theoretical position has been that judges do not make or change the law; they discover and declare the law which is thought the same. According to this theory, when an earlier decision is overruled the law is not changed; its true nature is disclosed, having existed in that form all along ... In truth judges make and change the law. The whole of the common law is judge made and only by judicial changes in the law is the common law kept relevant in the changing world.’ 2. Given that judges do make law, the question is the extent to which this is legitimate – ‘just’ or acceptable within current understandings of constitutional propriety. 3. The debate as to whether judges make law now proceeds increasingly in human rights terms and cannot be understood in the terms of conventional practice of precedent.
4. Determining the boundaries of judicial law making is partly a doctrinal (the doctrine of precedent) and partly a constitutional (for Parliament to make laws) question. 5. The appeal in McLoughlin Appellant v O’Brain (1983) raised the question of the relationship between the legislature and the judiciary. Lord Salmon argued that the judge had a jurisdiction over the common law that ‘knows no gaps’ and no ‘casus omisus’. If this is the case, the task of the common law judge is to adapt the principles of law to allow a decision to be made on the facts in hand. This may involve the creation of new law. Whatever the case, judicial reasoning works from ‘a baseline of existing principle’ the judge works towards a solution that can be seen as an extension of principle by process of analogy. For Lord Scarman, this is the distinguishing feature of the common law: the judicial creation of new law as the justice of the case demands. This process may involve policy considerations but the judge can legitimately involve himself in this activity, provided the primary outcome is the formation of new legal principles, in those cases where the formation of principle involves too great an intrusion into the field of policy, the judge must defer to Parliament. Judges should know when to defer to Parliament. Judicial interpretation keeps the common law ‘flexible’ and responsive to change, and defers to Parliament on those issues which the courts are not well equipped to deal. Parliament also acts as a final adjudication. If the court makes mistakes, they can be corrected by legislation. Lord Scarman said: ’The real risk to the common law is not its movement to cover new situations and new knowledge but lest it should stand still, halted by a conservative judicial approach. If that should happen, and since the 1966 Practice Direction of the House it has become less likely, there would be a danger of the law becoming irrelevant to the consideration, and inept in its treatment, of modern social problems, justice would be defeated. The common law has avoided this catastrophe by the flexibility given it by generations of judges.’ 6. Lord Scarman’s account of judicial creativity appears underpinned by the concept of justice. It is a description of the common law judge as the guardian of the conscience of the common law. The judge is charged with the development of the law in such a way that its principles remain coherent as it develops and adapts itself to changing social conditions. Thus the flexibility of the common law is an element that makes it just. 7. However flexibility is inseparable from the ‘risk’ of ‘uncertainty in the law’. The risk varies with the context of the legal problem under consideration. The problem of uncertainty takes a different form in areas of ‘commercial transaction’ and ‘tortious liability for personal injuries. Lord Scarman argues that justice can demand a loss of certainty in the law. 8. R v R (1991) shows judicial creativity. The House of Lords held that a husband could be held guilty of raping his wife. This overruled the previous position. Lord Lane’s interpretation of the Act is creative enough to amount to judicial legislation. Though this may be objectionable it is the authority of the judge to update the common law to ’changing social attitudes’. The legitimacy of the courts action is justified by the fact that it is no creating a new criminal offence, but removing from the common law an anachronism that is ‘offensive’ to contemporary social attitudes and standards of behavior.
Page41 9. R v Clegg suggests the kind of situation where the judge will not legislate [not make law]. The House of Lords held that on a charge of murder, there was no distinction between the use of excessive force in self defence and the use of force in crime prevention. Although the House of Lords refused to change the law in relation to the reduction of murder to manslaughter, stating that it was a matter for Parliamentary legislation. Why did their Lordships refuse to alter the law? Although Lord Simon acknowledges that judges do make law, they have to refrain from doing so when policy matters are involved. Also here Parliament had passed the 1967 Act which did not create a defence that related to excessive use of force which made it different from Lynch as there one of the most compelling reasons for overruling the decision was that Parliament had not legislated. Lord Lloyd argued that although in R v R the House of Lords did change the common law without waiting for Parliament, the present issue is indeed one for the legislature. 10. C v DPP concerned the concept of doli incapax, or the presumption that a child between 10 and 14 was incapable of committing a crime. The House of Lords refused to abolish the rule, arguing that although it was not consistently applied, it was necessary for Parliament to legislate. A number of Acts showed a definite legislative position on the presumption of doli incapax. The court gave certain guidelines on judicial law making: ‘ (1) if the solution is doubtful, the judges should beware of imposing their own remedy. (2) Caution should prevail if Parliament has rejected opportunities of clearing up a known difficulty or has legislated, while leaving the difficulty untouched. (3) Disputed matters of social policy are less suitable areas for judicial intervention than purely legal problems. (4) Fundamental legal doctrines should not be lightly set aside. (5) Judges should not make a change unless they can achieve finality and certainty.’ However it is hard to know what the status of these guidelines is. However these principles go some way to articulating the areas where judges can safely legislate. The grounding idea appears to be in deference to Parliament when the ’solution is doubtful’ – or Parliament has already considered the issue and refused to legislate There is also a presumption against changing the law; and change should only come when it brings with it ’finality and certainty’. 11. Airedale NHS v Bland – a case that raised difficult moral, ethical and legal issues about the role to be played by medicine in keeping alive someone who was in a persistent vegetative state. On the facts, the court held that there could be no further benefit to the patient of continuing medical treatment; and medical staff were no longer under a duty to continue the treatment that sustained the patient’s life. Lord Browne Wilkinson says that the case presented the opportunity to consider the correct role of the judge in such a fraught area. Precisely because there was no consensus in society about the correct values that should inform this area of medical ethics, it was not fitting for the judges to ‘develop new, all embracing, principles of law’ that only reflect ‘the individual judges’ moral stance’. A judge thus has to work with the ‘existing law’. Lord Browne Wilkinson considered that it was imperative that the moral,
social and legal issues raised by this case should be considered by Parliament. It was up to Parliament, and the ’democratic process’ to give voice to principles that reflected a consensus.
Arguments in support of judicial activitism 1. The position that judges did not make law proved untenable as it went against the older doctrine of judicial competence over the common law. 2. It also proved a difficult line to hold, because the need to do justice could not easily be removed from judicial practice in the name of unqualified procedural regularity. 3. Original precedents (cases of first impressions) – Every rule of the common law must have had an origin. It follows that where there is no established precedent, the doctrine of stare decisis breaks down and the courts are faced with the alternative of either refusing to decide a case, or stating what the law should be. Even in modern times, courts are still required to consider situations for the very first time without access to precedent. Such cases of first impression inevitably involve judges in the establishment of new law. The common law system lends itself to judicial creativity. One of the main reasons for judicial creativity is the common law system which is founded to a large extent on case law – laws that were made by judges. Areas like tort and contract are largely case law based. (i) Denning’s obiter statements in Central London Property Trust Ltd v High Trees House Ltd led to the creation of the doctrine of promissory estoppel. (ii) The neighborhood principle was propounded by lord Atkin in Donoghue v Stevenson (iii) The earliest criminal offences were judge made though it has been accepted in Knuller v DPP that judges have no power to create new criminal offences. However in Shaw v DPP the court created the offence of conspiracy to corrupt public morals.
Page42 4. The impact of the Practice Statement (Judicial Precedent) 1966. See cases where HL overruled its previous decisions. 5. Development in criminal law. R v R and Shaw v DPP. 6. The impact of the HRA 1998 – The contribution of Lord Steyn in R v A. Also see Ghaidan v Mendoza. Also see Kay v Lambeth in your revision notes. 7. Judicial activitism – can be seen in the contribution of Lord Denning, Lord Atkin, Lord Radcliffe and Lord Reid. (Father of Commercial law)
8. Parliament cannot legislate for every conceivable situation – there would be a lack of Parliamentary time. Arthur J.S. Hall v Simons (HL) – Lord Steyn – to leave the development and the evolution of the law to Parliament without judicial intervention would create uncertainty in the mind of society. In the absence of a rule of law, judges are expected to fill in the vacuum. 9. It is said that judges being experienced in the application of the law may be able to foresee how problems can be solved better than Parliamentary drafters.
D. CONCLUSION 1. "The appetite of some judges for changing the law themselves, rather than waiting for Parliament to do so, is growing." (Francis Benion). Francis Benion highlighted the danger, that if the courts are too willing to undermine the position of Parliament. 2. The cases show that the perceptions of the legitimate boundaries of judicial law making are difficult to draw precisely. The closest that we have come to a definitive statement, Lord Lowry’s guidelines, suggest that some of the factors that a judge would take into account. However, the precise dynamics of how these factors are weighed, or, indeed, the extent to which other factors may be influential, is impossible to determine in abstraction. Generally the common law interpretation proceeds for the most part without such guidelines being absolutely explicit.
Page43 Chapter6: ADR AND THE CIVIL JUSTICE PROCESS CONTENTS: A. The Civil Justice System B. The Courts, Common Law Tradition And Alternative Dispute Resolution C. The Values and Peculiarities of the English Common Law Culture D. What Were the Problems Relating to the Civil Justice System Prior to the Woolf Reforms? E. The Reforms Implemented Pursuant to the Woolf Reforms F. What is ADR? G. Types of ADR H. ADR and the Civil Procedure Rules I. Problems of Using Courts to Resolve Disputes
J. The Advantages of ADR as Opposed to Courts K. Disadvantages and Problems of ADR l. Why Did Lord Woolf Encourage Use of ADR in his Reforms? M. How Successful has the Woolf Reform Been in Promotiong ADR/the Future of ADR? N. How to Increase use of ADR O. Examples of ADR in practice
A. THE CIVIL JUSTICE SYSTEM 1. The civil justice system is designed to sort out disputes between individuals or organizations. 2. One party known as the claimant sues the other, called the defendant, usually for money they claim is owed or for compensation or some other remedy in equity. 3. The Civil Procedure Rules came into force in April 1999. This reform of the civil justice system were essentially based on the Woolf Report. The aim of the reforms was to reduce the cost, delay and complexity of the system and to increase access to justice.
Page44 B. THE COURTS, COMMON LAW TRADITION AND ALTERNATIVE DISPUTE RESOLUTION The two courts which hear civil cases are the County Court and the high Court. a. High Court In the High Court there are three divisions - Chancery, Queen’s Bench and Family Divisions. They act as separate courts, with judges usually working within one division only. (i) The Family Division hears cases concerning marriage, children and the family, such as divorce, adoption and wills. (ii) The Chancery Division deals with matters of finance and property, such as tax and bankruptcy (iii) The Queen’s Bench Division is the biggest of the three, with the most varied jurisdiction including contract and tort cases. b. County Court
There are currently around 300 county courts concerned exclusively with civil work. About 170 of them are designated as divorce county courts and have jurisdiction to hear undefended divorces and cases concerning adoption and guardianship. c. Magistrates Court Although most civil cases are dealt with by either the county courts or the High Court, magistrates’ courts have a limited civil jurisdiction. This is a highly examinable area of the syllabus in recent times. In order to answer examination questions on civil justice system, a student needs to have a good understanding of the following issues relating to the English Civil Justice System: (1) The values and peculiarities of the English common law culture; (2) What were the problems relating to the Civil Justice System prior to the Woolf Reforms? (3) The reforms implemented pursuant to the Woolf Reforms; (4) Why was the focus of the Woolf Reforms on promotion of Alternative Dispute Resolution (“ADR”)? (5) How successful was the reform in relation to promotion of ADR? (6) Is it fair and just that so much emphasis is placed on ADR? and (7) What are the problems facing the Civil Justice System after the Woolf Reforms?
C. VALUES AND PECULIARITIES OF THE ENGLISH COMMON LAW SYSTEM 1. The roles of the civil justice system are among others as follows: (a) Dispute resolution-it resolves disputes between parties, including adjudication of claims. (b) Determination –it provides authoritative determination of matters. (c) Rule-making – it formulates rules and principles so that we could refer to the law to guide and plan our conduct and lives. 2. The objectives and aims of civil justice process are: (a) Ensure that the process is just. Consistency, free from coercion, unbiased, dignified and serious decision making and right to review or challenge the decision. (b) Ensure that the process is accessible. Should not be prohibitively costly. Process is understandable. (c) Ensure that the process is efficient. Procedures are not cumbersome and repetitive.
(d) Ensure that the process is timely. Speed in resolution of dispute. No technical rules to delay proceedings. Parties cooperate to complete cases. (e) Ensure that the process is effective. Machinery available to ensure compliance with order. Certainty in the law. No need to resort to another forum to finalize the dispute. OLD VALUES – Pre-Woolf Reforms 3. In the past, prominence was given to the roles of the court as the body for making authoritative determination of disputes and a body that makes rules via judicial precedent. To a certain extent, this is a contribution of legal education of lawyers where we were taught to focus on primacy of legal principle/rules as to: (a) What was the ratio decidendi and obiter of the case? (b) What were the legal principles established in that case? (c) What were the legal rights established in that case? (d) What were the possible counter arguments to negate such legal rights so as to distinguish that legal case? There would be hardly prominence placed on the facts of the case and was the outcome of the case factually fair. 4. However, there is a more fundamental reason why lawyers are focused on the rule making and authoritative determination roles of the court. This is due to the ingrained adversarial nature of litigation. The adversarial process is thought to further the aims of the civil justice process in ensuring that the process is just, in that parties are able to put forward their case the best that they can and there is an umpire (the Judge) to make a ruling on the matter. The idea that it is a fair process is supported in that: (a) It allows parties to define and control the process. Parties decide how they wish to conduct their case with minimal intrusion from the Judge; and (b) It allows competing versions of the dispute to be publicly aired and thereby reducing the possibility of biased judgment.
Page45 D. THE PROBLEMS WITH THE CIVIL JUSTICE SYSTEM PRIOR TO THE WOOLF REFORMS Expensive 5. Arising from the emphasis on “just” ( as in formal justice) in the sense that parties should be free to control the course and pace of proceedings and counsel should be permitted to take any legal technical points to advance his client’s case, the civil justice becomes slow, expensive and complex. Research
carried out for Lord Woolf’s review found that one side’s costs exceeded the amount in dispute in over 40 per cent of cases where the claim was for under £12,500. The simplest cases often incurred the highest costs in proportion to the value of the claim. Delays 6. The Civil Justice Review observed that the time between the incident giving rise to the claim and the trial could be up to three years for the county courts and five for the High Court. Time limits were laid down for every stage of an action but both lawyers and the courts disregarded them. Often time limits were waived by the lawyers to create an opportunity to negotiate, which was reasonable, but the problem was that there was no effective control of when and why it was done. Injustice 7. Usually an out-of-court settlement is negotiated before the litigants ever reach the trial stage. Excluding personal injury cases, for every 100,000 writs issued before 1999, fewer than 300 actually came for trial. An out-of-court settlement can have the advantage of providing a quick end to the dispute, and a reduction in costs. However, it could also lead to injustice as: (a) a party who is strictly entitled to the full sum if the matter proceeds for trial will usually need to settle for less. (b) a party who is not liable to pay under law may be compelled to pay something to the claimant so as not to go through the inconvenience of a trial. (c) A settlement is essentially a negotiated settlement/compromise and not about giving effect to the actual legal rights of the parties. The adversarial process 8. Many problems resulted from the adversarial process which encouraged tactical maneuvering rather than cooperation. It would be far simpler and cheaper for each side to state precisely what it alleged in the pleadings, disclose all the documents they held, and give the other side copies of their witness statements. Emphasis on oral evidence 9. Too much emphasis was placed on oral evidence at trial. This may have been appropriate when juries were commonly used in civil proceedings, but in the twentieth century much of the information the judge needed could be provided on paper and read before the trial. Oral evidence slowed down proceedings, adding to cost and delays.
Page46 E. THE REFORMS IMPLEMENTED PURSUANT TO THE WOOLF REFORMS
NEW VALUES Overriding Objective-Under the Civil Procedure Rules 1. The ultimate goal is to change fundamentally the litigation culture. Thus, the first rule of the new Civil Procedure Rules lays down an overriding objective which is to underpin the whole system. This overriding objective is that the rules should enable the courts to deal with cases ‘justly’. 2. This objective prevails over all other rules in case of a conflict. The parties and their legal representatives are expected to assist the judges in achieving this objective. The Woolf report had heavily criticized practitioners, who were accused of manipulating the old system for their own ‘convenience and causing delay and expense to both their clients and the users of the system as a whole. According to r. 1.1(2): “Dealing with a case justly includes, as far as is practicable – a. ensuring that the parties are on an equal footing; b. saving expense; c. dealing with the case in ways which are proportionate i. to the amount of money involved; ii. to the importance of the case; iii. to the complexity of the issues; and iv. to the financial position of each party; d. ensuring that it is dealt with expeditiously and fairly; and e. allotting to it an appropriate share of the Court’s resources, while taking into account the need to allot resources to other cases.” 3. The emphasis of the new rules is on avoiding litigation through pre-trial settlements. Litigation is to be viewed as a last resort, with the court having a continuing obligation to encourage and facilitate settlement. 4. There is in essence no real new value save that the emphasis now appears to be that the Court is giving primacy to its role as a facilitator of Dispute Resolution. 5. As for the aim and objective of the civil justice process, lip service is still given to the aim that it is to dispose of cases “justly”. However, from the definition of “just”, the emphasis is now on (a) efficiency and (b) timeliness. The aim was that the increase in efficiency and timeliness would (theoretically) result in the (c) lowering of costs and thereby (d) increasing access to the civil justice system. Unfortunately, as you will see, the objectives of lowering of costs and access to justice were not achieved.
PRE-ACTION PROTOCOLS 6. The pre-trial procedure is, perhaps, the most important area of the civil process, since few civil cases actually come to trial. 7. To push the parties into behaving reasonably during the pre-trial stage, Lord Woolf recommended the development of pre-action protocols to lay down a code of conduct for this stage of the proceedings. 8. The pre-action protocols that have been produced to date cover such areas of practice as personal injury, medical negligence and housing cases. They are a major innovation and aim to encourage: 8.1. more pre-action contact between the parties; 8.2. an earlier and fuller exchange of information; 8.3. improved pre-action investigation; and 8.4. a settlement before proceedings have commenced. 9. They strive to achieve this through establishing a timetable for the exchange of information, by setting standards for the content of correspondence, providing schedules of documents that should be disclosed along with a mechanism for agreeing on a single joint expert. 10. The pre-action protocols seek to encourage a culture of openness between the parties. This should lead to the parties being better informed as to the merits of their case so that they will be in a position to settle cases fairly, so reducing the need for litigation. 11. If settlement is not reached the parties should be able to proceed to litigation on a more informed basis. Pre-action protocols should also enable proceedings to run to timetable, and efficiently, if litigation proves to be necessary. 12. Compliance with a pre-action protocol is not compulsory but, if a party unreasonably refuses to comply, then this can be taken into account when the court makes orders for costs. It may be that these protocols will need ‘sharper teeth’ in order to be effective.
Page47 CASE MANAGEMENT 13. This is the most significant innovation of the 1999 reforms. Case management means that the court will be the active manager of the litigation. The main aim of this approach is to bring cases to trial quickly and efficiently. 14. Traditionally it has been left to the parties and their lawyers to manage the cases. In 1995, the courts had made a move towards case management following a Practice Direction encouraging such methods,
but it was only with the new Civil Procedure Rules that case management came fully into force. The new Rules firmly place the management of a case in the hands of the judges, with r. 1.4 emphasizing that the court’s duty is to take a proactive role in the management of each case. 15. Once proceedings have commenced, the court’s powers of case management will be triggered by the filing of a defence. When the defence has been filed and case management has started, the parties are on a moving train, trial dates will be fixed and will be difficult to postpone, and litigants will not normally be able to slow down or stop unless they settle. The court first needs to allocate the case to one of the three tracks: the small claims track, the fast-track or the multi-track (r. 24.6(l)), which will determine the future conduct of the proceedings. 16. To determine which the appropriate track the court is will serve an allocation questionnaire on each party. The answers to this questionnaire will form the basis for deciding the appropriate track. When considering the allocation questionnaire, the judge will: a. determine whether a case should be subject to summary judgment, or b. whether a stay of proceedings should be given for alternative dispute resolution; and c. if neither of these matters applies, whether there should be an allocation hearing called or whether the matter can be the subject of a paper determination of the allocation to a particular track. 17. At various stages in a dispute’s history, the court will actively promote settlement by Alternative Dispute Resolution (“ADR”).
F. WHAT IS ADR? 1. Court hearings are not always the best methods of resolving a dispute, and their disadvantages mean that for some types of problems, alternative mechanisms may be more suitable. 2. ADR and tribunals are two significant avenues for resolving disputes that fall within the legal system but outside the court system. 3. ADR is defined in the glossary to the CPR as a “collective description of methods of resolving disputes otherwise than through the normal trial process.” 4. ADR aims to avoid the cost, formality, time-consuming, adversarial and intimidating nature of court cases. The main methods are negotiation, mediation, conciliation and arbitration. 5. The main uses of these at present are in family, consumer, commercial, construction and employment cases but following Lord Woolf’s reforms of the civil justice system, these alternative mechanisms should play a more important role in solving all types of civil disputes.
Page48 G. TYPES OF ADR a. Arbitration 1. Arbitration is a procedure whereby both sides to a dispute agree to let a third party, the arbitrator, decide. The arbitrator may be a lawyer, or may be an expert in the field of the dispute. He or she will make a decision according to the law and the decision is legally binding. 2. Where there is an arbitration agreement in a contract, the Arbitration Act 1996 states that the courts will normally refuse to deal with any dispute. If court proceedings are brought, the court will stay the proceedings and the matter must go to arbitration as agreed 3. Arbitration has a statutory basis unlike the other forms of ADR. b. Mediation 1. Mediation involves the appointment of a mediator to help the parties to a dispute reach an agreement which each considers acceptable. The mediator is independent and is paid by both parties. 2. Mediators encourage progress in the negotiations. However, they tend not to offer an opinion about the dispute in question. Thus, in theory, mediation places the onus on the parties to reach a solution. 3. For mediation to be successful, both parties must be willing to give and take. When mediation is successful and an agreement is reached, it is written down and forms a legally binding contract unless the parties state otherwise. 4. Mediation has been applied to trust and probate cases to resolve conflicts within families, to divorce cases, to commercial disputes and to arguments between neighbors. c. Conciliation 1. Here the third party takes an interventionist role in the discussions between the parties in order to push them in the direction of a settlement. The conciliator plays a more active role than a mediator. 2. The conciliator will be expected to suggest grounds for compromise, and the possible basis for a settlement. 3. Resolving the dispute successfully will often depend on the skill of the conciliator and the willingness of the party to co-operate. 4. A body that acts as the third party in industrial disputes, and therefore has a high profile conciliation role is the Advisory Conciliation and Arbitration Service (ACAS). 5. The term conciliation is gradually falling into disuse and the process is regarded as a form of mediation.
d. Negotiation 1. One of the simplest forms of ADR is, of course, informal negotiation between the parties themselves, with or without the help of lawyers - the high number of civil cases settled out of court are examples of this. 2. Negotiation can be a very quick, confidential and cross-effective way of setting a dispute, particularly for small-scale local matters as between neighbors or between consumers and shopkeepers. e. Early neutral evaluation Prior to going to court, parties may appoint an independent third party to consider their respective claims and to then deliver his opinion either on the likely outcome or on a point of law.
Page49 H. ADR AND THE CIVIL PROCEDURE RULES 1. At various stages in a disputes history, the court will actively promote settlement by ADR. The use of ADR has been promoted by the Civil Procedure Rules: (i) The pre-action protocols direct the parties to consider ADR. (ii) Active case management under Civil Procedure Rule 1.4 involves”... encouraging parties to use an ADR procedure (if the court considers that appropriate) and facilitating the use of that procedure r.1.4 (2) (e)) (iii) When filling out the Allocation Questionnaire, the parties are invited to apply for a one-month stay of proceedings in order to explore settlement through ADR. (iv) CPR 26.4 allows the court to grant a stay for settlement by ADR or other means either when one or all of the parties requests this, or when the court considers this would be appropriate. (v) CPR 44.5 provides that if a party fails to use ADR where the court thinks this would have been appropriate then it can be penalized through a costs order. (vi) The parties will have to show that they genuinely attempted to resolve their dispute through ADR and have not just paid lip service to the ideal, as has been the tendency in the past. 2. A party may turn down an opponent’s offer to mediate with impunity if it can satisfy the court that it has compelling reasons for doing so. Thus, in Hurst v Leeming (2002) the court held that when mediation can have no real prospect of success a party may, with impunity, refuse to proceed to mediation.
3. In Halsey v Milton Keynes General NHS Trust (2004) the Court of Appeal held that the courts do not, however, have the power to force parties to try ADR, as this might amount to a breach of a person’s right to a fair trial under Art 6 of the ECHR. ‘It is one thing to encourage the parties to agree to mediation, even to encourage them in strongest terms. It is another to order them to do so. It seems to us that to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the Court.’ 4. In contrast, in many other countries, such as the USA and Australia, the courts are prepared to force the parties to try ADR. 5. There has been recent emphasis on the importance of ADR in resolving civil disputes. In Dummet v Railtrack plc (2002) a winning party who had unnecessarily obstructed the use of alternative methods of settlement was denied an award of costs.
I. PROBLEMS OF USING COURTS TO RESOLVE DISPUTES ADR has become increasingly popular because of the difficulties of trying to resolve disputes through court hearings. Some of the problems posed by court hearings. (i) Costly in terms of both money and time. Delay as legal representation may lengthen cases. (ii) Inflexible as in a court hearing, the rules of procedure lay down a fixed framework for the way in which problems are addressed. ADR can allow the parties themselves to take more control of the process. (iii) Proceedings are formal, complex and hard to comprehend for parties. (iv) The adversarial process may not lead to the most satisfactory outcome for the parties. A trial necessarily involves a winner and a loser, and the adversarial procedure combined with the often aggressive atmosphere of court proceedings divides the parties, making them end up enemies even where they did not start out that way. This can be a disadvantage where there is some reason for the parties to sustain a relationship after the problem under discussion is sorted out – for example in child custody cases or in business where it may better to maintain a relationship for future business. (v) Not private. The majority of court hearings are public. This may be undesirable in some business disputes, where one or both parties may prefer not to make public the details of their financial situation or business practice because of competition. (vi) Technical cases. Some disputes rest on detailed technical points rather than on points of law. The significance of such technical details may not be readily understandable by an ordinary judge. Expert witnesses or advisers may be brought in to advice on these points, but this takes time and raises cost.
Where detailed technical evidence is at issue, ADR can employ experts in a particular field to take the place of a judge. (vii) Imposed solutions. Court hearings impose a solution on the parties which, since it does not involve their consent, may need to be enforced.
Page50 J. THE ADVANTAGES OF ADR AS OPPOSED TO COURTS 1. Parties have greater control. The parties themselves have greater control over the proceedings and the outcome in conciliation and mediation. However research by Hazel Genn suggests that mediators sometimes exceed their role. 2. Generally quicker and cheaper than court action though this is not always the case as if negotiations fail the case may still have to go to court. Many procedures try to work without any need for legal representation, and even those that do involve lawyers may be quicker and therefore cheaper than going to court. Further conciliation and mediation may have the advantage of identifying, and clarifying the main issues in the dispute even if a settlement is not reached. The delays in the civil court system are well known, and waiting for a case to come to court may, especially in commercial cases, add considerably to the overall cost, and adversely affect business. The research carried out by Professor Genn (1998) found that mediation was able to promote and speed up settlement. The majority (62 per cent) of mediated cases settled at the mediation appointment. 3. Less formal and simpler procedures as compared to court proceedings. 4. Avoids adversarial conflict of the court room and the winner loser result of court proceedings. 5. Maintains relationship - Offers parties a chance to reach a sensible solution while preserving existing business and family relationships which may be important. 6. Conducted in private and voluntary - mediation and conciliation are private as it takes place between the parties. It is a confidential process voluntarily entered into by the parties seeking resolution of their dispute on a without prejudice basis. 7. Commercial commonsense and compromise - The decision need not be a strictly legal one sticking to the letter of the law. The decision is more likely to be based on commercial commonsense and compromise. 8. More Accessible - Alternative methods tend to be more informal than court procedures, without complicated rules of evidence. The process can therefore be less intimidating and less stressful than court proceedings.
9. Expertise - Those who run alternative dispute resolution schemes often have specialist know ledge of the relevant areas, which can promote a fairer as well as a quicker settlement. 10. Customer satisfaction - The research by Hazel Genn (2002) found that ADR generally results in a high level of customer satisfaction.
K. DISADVANTAGES AND PROBLEMS OF ADR 1. Lack of legal expertise - Where a dispute hinges on difficult points of law, an arbitrator may not have the required legal expertise to judge. 2. Lack of funding. No legal aid - costs met by parties. 3. Lack of precedent - up to parties to achieve settlement based on facts. 4. Imbalances of power - As the unfair dismissal conciliation scheme shows, the benefits of voluntarily negotiating agreement may be undermined where there is a serious imbalance of power between the parties - in effect, one party is acting less voluntarily than the other. 5. No system of precedent - There is no doctrine of precedent, and each case is judged on its merits, providing no real guidelines for future cases. 6. Enforcement - Decisions not made by courts may be difficult to enforce. 7. Low take-up rate - There is a low take-up rate for ADR, and the numbers have not increased as much as expected following the introduction of the Woolf reforms. (see below)
Page51 L. WHY DID LORD WOOLF ENCOURAGE USE OF ADR IN HIS REFORMS? 1. Court hearings are not always the best methods of resolving a dispute, and their disadvantages mean that for some types of problems, alternative mechanisms may be more suitable. 2. ADR can avoid the cost, formality, time-consuming, adversarial and intimidating nature of court cases. 3. One must not forget that the court is actually the last resort for any litigant. This because according to Michael Zander in Chapter 2 of “the State of Justice”: “A pictorial representation of civil disputes is like a pyramid with the base representing the tiny proportion that reach a court, with the body of the pyramid representing the infinite variety of ways in which such problems have been dealt with by the citizens with or without advice from others and whether not involving legal proceedings. The civil justice system is brought into play in only a small proportion of all these disputes”.
4. In a study conducted by the Oxford Socio-Legal Centre, out of 1700 accidents where the victim suffered physical impairment, only 14% made a claim, 12% obtained damages and finally only 5 out of 1,711 were decided in contested hearings. According to Lord Clarke (Master of the Rolls) in his speech “Mediation-An Integral part of our litigation culture”, 98% of cases are settled before trial. 5. We could say that generally people have a distorted view of the civil justice system if they were to concentrate on trials since it clearly represents only a small fraction of the cases (the tip of the pyramid). The “main action” is not trial but out of court settlement or possibly settlement by way of alternative disputes resolution such as arbitration and mediation. 6. As such, Lord Clarke1 was of the view that the Woolf reform’s main aim was precisely this to encourage settlement. Therefore, lawyers, judges and all involved in the delivery of justice should focus their efforts on maintaining that figure and encouraging those other claims that could properly join and swell the ranks of 98%.
M. HOW SUCCESSFUL HAS THE WOOLF REFORM BEEN IN PROMOTING ADR / THE FUTURE OF ADR? 1. Following the Woolf reforms of the civil justice system, the Civil Procedure Rules positively encourage the use of ADR as clearly discussed above. 2. However, take up of ADR has been low. Although ADR appears to meet many of the principles for effective civil justice, the proportion of people with legal problems who choose to use ADR has remained very low, even when there are convenient and free schemes available. 3. Research carried out for the Lord Chancellor’s Department, Further Findings: A Continuing Evaluation of the Civil Justice Reforms (2002), has found that after a substantial rise in the first year following the introduction of the Civil Procedure Rules 1998, there has been a leveling off in the number of cases in which alternative dispute resolution is used. 4. Hazel Genn’s research (2002) found that outside commercial practice, ‘the profession remains very cautious about the use of ADR. Positive experience of ADR does not appear to be producing armies of converts’. 5. Hazel Genn looked at the reasons why parties choose not to use ADR. For the Commercial Court ADR scheme, the most common reasons given for refusal to mediate were: (i) a judgment was required for policy reasons; (ii) the appeal turned on a point of law; (iii) the past history or behavior of the opponent. 6. Hazel Genn said that the most common reasons given for not trying ADR following an ADR order in the Court of Appeal were:
(i) the case was not appropriate for ADR; (ii) the parties did not want to try ADR; (iii) the timing of the order was wrong (too early or too late); or (iv) there was no faith in ADR as a process in general. 7. In addition, Professor Hazel Genn has suggested that following the Woolf reforms the increased number of pre-trial settlements might mean that fewer people feel the need for ADR in ‘run of the mill’ cases. 8. It is likely that in the future ADR will play an increasingly important role in the resolution of disputes. It is generally accepted that the UK will see a similar expansion in the use of ADR as in other countries like the US, as both the courts and the legal profession begin to take ADR more seriously than they once did. 9. The government has said, in the explanatory notes to the Access to Justice Act 1999, that in time they hope to extend public funding increasingly to cover the use of ADR. 10. The government is keen to promote ADR. It has set up a working party to draw up plans to increase awareness of the availability of ADR and intends to launch a wide-ranging awareness campaign. 11. As part of the Government’s commitment to promote alternative dispute resolution, Government legal disputes will be settled by mediation or arbitration whenever possible. Government departments will only go to court as a last resort. (1*) Lord Clarke (Master of the Rolls) in his speech “Mediation-An Integral part of our litigation culture”
Page52 N. HOW TO INCREASE USE OF ADR 1. The research by Hazel Genn concluded that an individualized approach to the direction of cases towards ADR is likely to be more effective than general invitations at an early stage in the litigation process. This would require the development of clearly articulated selection principles. The timing of invitations or directions to mediate is crucial. The early stages of proceedings may not be the best time, and should not be the only opportunity to consider using ADR.
O. EXAMPLES OF ADR IN PRACTICE 1. Conciliation in unfair dismissal cases - A statutory conciliation scheme administered by ACAS operates before cases of unfair dismissal can be taken to an employment tribunal.
2. Mediation in divorce cases – In many cases, the court system is an undesirable forum for divorce and its attendant disputes over property and children, since the adversarial nature of the system can aggravate the differences between the parties. The Family Law Act 1996 makes changes to the divorce laws and places a greater emphasis on mediation. 3. Trade association arbitration schemes–The Fair Trading Act 1973 provides that the Director General of Fair Trading has a duty to promote codes of practice for trade associations. Many include provisions for an initial conciliation procedure, often followed by independent arbitration if conciliation fails. 4. Commercial arbitration - Many commercial contracts contain an arbitration agreement, requiring any dispute to be referred to arbitration before court proceedings are undertaken. 5. Commercial Court ADR scheme – Since 1993 the Commercial Court has issued ADR orders for commercial disputes regarded as suitable for ADR. ADR orders were generally thought to have had a positive or neutral impact on settlement. 6. The Court of Appeal mediation scheme – The Court of Appeal has a voluntary mediation scheme, under which a standard letter is sent to the parties inviting them to enter mediation. Since 1999, parties refusing to mediate have been asked to give their reasons for refusal.
IS IT FAIR AND JUST THAT SO MUCH EMPHASIS IS PLACED ON ADR BY LORD WOOLF? ADR and Access to Justice 1. You must consider whether ADR is the ‘cure’ for the lack of access to justice? 2. According to Hazel Genn, “ADR and Civil Justice: What’s justice got to do with it”, feels that we have been presented with two competing narratives about civil justice (i) there is not enough of access to justice and (ii) there is too much litigation. The government and some Judges’ answer to these two competing problems are to divert cases away from court and to push it to private resolution which is ADR.
HAZEL GENN CRITICISMS OF MEDIATION AND RESPONSES TO HER CRITICISMS.2 1. Dame Hazel’s lectures attacked what she saw as the downgrading of civil justice, the degradation of civil court facilities and the diversion of cases to private dispute resolution. It was all the fault of Lord Woolf, Dame Hazel suggested. 2. Lord Woolf had called his report Access to Justice. ‘Some commentators have argued that the purpose of the reforms was to provide more access and less justice,’ Dame Hazel pointedly observed. But modern civil justice reform was neither about more access nor more justice, she maintained. It was simply about diversion.
(2*) Joshua Rozenberg. “Dame Hazel Genn warns of ‘downgrading’ of civil justice”, Law Society Gazette Thursday 18 December 2008. Frances Gibb, Woolf v Genn: the decline of civil justice, The Times Online; and Lord Clarke of Stone-cum-ebony, master of the Rolls, “Mediation- An Integral Part of our Litigation Culture”, 8 June 2009.
Page53 2.1. ‘The push for less law is supported by the growing ADR profession which professes a mission to rid society of conflict but which is more interested in the profits to be made from large commercial dispute settlement than the small change of the county courts,’ she said. 2.2. Not that she was totally opposed to ADR. It was ‘an important supplement to courts that should be made available to anyone contemplating litigation’. But it had been used as an excuse to save public money. In response to greater spending on the criminal courts, ministers had looked for savings in civil justice. That had been achieved by ‘diversion of cases away from public courts and into private dispute resolution, stripping down court procedure and making litigants pay for court buildings, judges and the administration through full-cost fee recovery’. 2.3. Unlike common law system, the civil courts in England are self financing, paid for by litigants. But Genn noted any surpluses generated from litigants are not invested in civil courts: instead they are “redirected into the gaping maw of criminal justice”. 2.4. Increasing pressure was being put on parties to mediate after they had issued court proceedings. “Although this policy has been given an ‘access to justice’ label, it is, in fact, a strategy for diverting disputes away from justice”. Mediation ‘is not about just settlement’, said Professor Dame Hazel Genn earlier this month. ‘It is just about settlement’. 2.5. Dame Hazel said that despite the case of Halsey which held that compulsory ADR would amount to an unacceptable constraint on the right of access to the court, breaching the right to a fair trial, yet the Master of the Rolls, Sir Anthony Clarke speaking extra judicially recently had said that ‘Despite the Halsey decision it is at least strongly arguable that the court retains a jurisdiction to require parties to enter into mediation’. Therefore, Genn feels that there is unacceptable pressure being put on parties by the Court to refer matters for mediation. 3. Lord Woolf’s responses: 3.1. Agrees that costs had escalated. ‘The situation in regard to costs is worrying,’ he said in a message to the conference. ‘Are we unnecessarily restricting the discretion of the case-managing judge? Are we giving unnecessary scope to tactical advocacy?’ 3.2. Nevertheless suggested that he had not been asked to find ways to reduce costs, but his undertaking was to find ways of improving civil litigation.
3.3. Woolf however said that he too disapproved of the Government policy of making the civil courts self financing. 3.4. There was a misunderstanding between the Government, judges and lawyers to bring about a situation where civil justice would be under-resourced, a collective desire to drive cases away from the courts. 3.5. He is of the view that as a proper functioning justice system that mediation does help to achieve justice. 4. Lord Clarke Master of the Rolls in his speech “Mediation-An Integral part of our litigation culture”3 defended mediation and his arguments are as follows: 4.1. Mediation is a good thing because it helps to engender settlement and only a fool does not want to settle. The courts should encourage it. 4.2. The reason why mediation is not used as much as it might be (if it is not) is lack of education. What is required is education of judges, lawyers (both solicitors and barristers) and, perhaps most important, repeat clients such as liability underwriters. 4.3. He believes that Genn’s point is that mediation is an adjunct to formal justice. It presupposes the necessary existence of an effective, efficient and accessible civil justice system that is accessible to all. 4.4. He believes that Genn’s fear is that ADR would be the rule formal litigation through which the civil justice system would become the exception. Once civil litigation becomes a “supplement” it can be dispensed with. 4.5. However, he does not think that the existence and value of the role of the courts in civil justice system is in anyway threatened by ADR or mediation. ADR is an important supplement to court determination of disputes that should be made available to all. His reasons are as follows: (3*) Lord Clarke of Stone-cum-ebony, Master of the Rolls, “mediation- An Integral Part of our litigation Culture”, 8 June 2009
Page54 (a) ADR was never meant to be something more than an important supplement to formal determination of claims. The statements encouraging settlement were merely firm endorsements of a truth that our civil justice system has long recognized: that the vast majority of disputes settle before trial-the present figure of 98% settlement rates mirrors that which was noted in 1820 by the Common Law Commissioners.
(b) Therefore, lawyers, judges and all involved in the delivery of justice should focus their efforts on maintaining that figure and encouraging those other claims that could properly join and swell the ranks of 98%. (c) Heilbron/Hodge4 and Woolf never saw ADR as a universal panacea or, as such, a replacement for formal litigation. Heilbron & Hodge put it this way: “Most parties to litigation want to resolve their disputes ... ADR can in certain suitable cases provide the solution. It will never replace litigation ...” 4.6. Both Heilbron & Hodge and then Woolf, while emphasising various means how and why ADR and mediation should be encouraged and facilitated by the courts, were firmly in the camp which regarded ADR as important supplement to the resolution of disputes by the courts. 4.7. Neither today nor in the future can formal litigation, ADR or mediation be all that there is. ADR and mediation are, as Lord Clarke sees it, an essential supplement to the role of the court and as such are and must be an integral part of our litigation culture. They facilitate access to justice for the many, and hence presuppose an effective formal civil justice system, by ensuring that only those cases that truly need to resort to formal adjudication do so. There will only be very few of those because, “only a madman does not want to settle”.
ELIZABETH THORNBERG-REFORMS So, while it may be laudable that Lord Woolf had sought to increase the use of ADR as a form of dispute resolution procedure. ADR should be just a supplement to Court action and it should never be used to replace Court action. It is useful perhaps to consider the following reforms suggested by Elizabeth Thornberg in her article, “Reaping what we sow: anti-litigation rhetoric, limited budgets, and declining support for civil courts” *2011+ Civil Justice Quarterly 74 at p.90 to 91: (a) There must be increase in funding for civil justice system, such as new courts, more judges and improved information technology. (b) Courts are important for the enforcement of rights. There is therefore a need to maintain a balance between efficiency and access to justice. (c) Recent civil justice reviews in Scotland and Victoria have called for the establishment of standing Civil Justice Council with power to commission research and support staffs that include researchers and perhaps England should also follow suit so that there could be people devoted full time to conduct research and get empirical evidence in support of reforms. This is because there has not yet research to assess the effect on the ability of citizens to access the courts, the fairness of settlements or the quality of decisions in the disputes that make it to trial. WHAT ARE THE OTHER PROBLEMS FACING THE CIVIL JUSTICE SYSTEM AFTER THE WOOLF REFORMS?
Professor Zander’s concerns 1. Professor Zander (1998), a leading academic, felt that the reforms were fundamentally flawed, rather than prone to temporary hiccups, and was very vociferous in expressing his opposition to the reforms prior to their implementation. He is reported to have said that they amounted to taking a sledgehammer to crack a nut. Below is an analysis of the main concerns he has expressed. (4*) Report commissioned jointly by the Law Society and the Bar Council supported by ‘unsubstantiated opinion’ rather than real evidence, despite the fact that it forms the basis for most of the subsequent proposals.
Page55 The causes of delay 2. Lord Woolf’s view was that the chief cause of delay was the way the adversarial system was played by the lawyers. Zander has criticized this analysis, pointing out that it is only 3. The Judicial Statistics published in 2002 show that, in the High Court, the time taken between issue and trial has gone up to 173 weeks, but delays have been reduced in the county court, where the average time from issue to trial has fallen from 640 days in 1997 to 500 in 2000-01. 4. Zander in a recent article (“Zander on Woolf, New Law Journal, 13 March 2009), reiterated that his criticisms are still valid 10 years after the Woolf Reforms. He is of the view that the Woolf Reform did not solve the problem of delay and he explains it as follows: (a) The figures pre-Woolf and post Woolf on delays should be looked at not from the period of the start of the proceedings to the end of trial. The period should be measured from “the time that the solicitor first receives his instructions” to the conclusion of the matter. With the fast track system, the solicitors need to prepare his cases in greater detail before filing the proceedings. (b) He said that according to the research conducted by Richard Moorehead and Pamela Abrams (More Civil Justice? The Impact of the Woolf Reforms and Pre-Action Behaviour), the overall delay had remained the same. While post-issue stage had got quicker, the pre-issue stage had got slower. Both before and after the reforms, the average standard fast track case took 13 months to complete. There are no equivalent multi-track figures. Case management 5. Zander feels that court management is appropriate for only a minority of cases and that the key is to identify these. He has remarked that judges do not have the time, skills or inclination to undertake the task of case management.
6. The court does not know enough about the workings of a solicitor’s office to be able to set appropriate timetables. In addition, litigants on the fast-track may feel that the brisk way in which a three-hour hearing deals with the dispute is inadequate. 7. Most will not feel that justice has been done by a short, sharp trial with restricted oral evidence and an interventionist judge pushing the parties to a resolution of their dispute. 8. Zander in a recent article (“Zander on Woolf, New Law Journal, 13 March 2009) said that according to Professors John Peysner and Mary Seneviratne’s study of case management, some judges thought that it actually caused delay and that at least some solicitors could case manage more effectively than judges. Research conducted by Rand Corporation in California 9. A move towards judicial management has already been seen in the US, Australia and Canada. A major official study was published by the Institute of Civil Justice at the Rand Corporation in California. 10. This research was not available to Lord Woolf while he was compiling his report. The study was based on a five-year survey of 10,000 cases looking at the effect of the American Civil Justice Reform Act 1990. One of the effects of Rand report is on the issue of increased costs which shall be discussed further below. Increase in speed of disposal of case 11. The study found that judicial case management did lead to a reduced time to disposition. Its early use yielded a reduction of one-and-a-half or two months to resolution for cases that lasted at least nine months. 12. Also, having a discovery timetable and reducing the time within which discovery took place both significantly reduced time to disposition and significantly reduced the amount of hours spent on the case by a lawyer. These benefits were achieved without any significant change in the lawyers’ or litigants’ satisfaction or views of fairness. Increase in costs 13. On the other hand, case management led to an approximate 20-hour increase in lawyer work hours overall. Their work increased with the need to respond to the court’s management directions. In addition, once judicial case management had begun, a’ discovery cut-off date had usually been established and lawyers felt an obligation to begin discovery on a case which might be settled. 14. Thus, the Rand Report found that case management, by generating more work for lawyers, tended to increase rather than reduce costs. If the fixed costs did not reflect the extra cost then this would be unjust to the lawyers and their clients. The danger is that case management will front-load costs onto cases which would have settled anyway before reaching court, and which therefore did not need judicial management.
15. There is also growing evidence of disputes about costs as a result of the reform.5 The Rand Report noted that the effectiveness of implementation depended on judicial attitudes. Some judges viewed these procedural innovations as an attack on judicial independence and felt that it emphasized speed and efficiency at the possible expense of justice. 16. In research carried out for the Law Society, The Woolf Network Questionnaire (2002), 84 per cent of solicitors questioned said they thought the new procedures were quicker and 70 per cent said they were more efficient than the old ones. Greater use of telephone case management conferences was cited as leading to greater efficiency. (5*) Gunn, Professor Hazel, “Solving Civil Justice Problems: what might be best?” (2005)
Page56 Inconsistent judicial decision and sanctions 17. Procedural timetables for the fast-track are, according to Professor Zander, doomed to failure because a huge proportion of firms, for a range of reasons, will fail to keep to the prescribed timetables. This will necessitate enforcement procedures and sanctions on a vast scale which, in turn, will lead to innumerable appeals. Sanctions will be imposed that are disproportionate and therefore unjust, and will cause injustice to clients for the failings of the lawyers. 18. Furthermore, if the judges did impose severe sanctions when lawyers failed to comply with timetable deadlines, it would usually be the litigants rather than the lawyers who would be penalized. 19. Zander in a recent article (“Zander on Woolf, New Law Journal, 13 March 2009), after the Woolf reforms, Judges have wide discretion in deciding on these matters, and this could lead to inconsistent judicial making and that “there is a growing concern among judges and lawyers that the new rules have become a lottery. Parties have little idea of how much they will recover if they win or how much they will have to pay if they lose”. Generate more litigation 20. There is the danger that, if the court does not exercise its power temperately and judiciously then, in its eagerness to dispose of litigation, it will actually generate more litigation. 21. This danger is particularly acute where the court exercises powers on its own initiative. If, for example, the court moves to strike out a statement of case on its own initiative, the likely result is that the party affected will apply to have its case reinstated; and if, in fact, it was not a suitable case for striking out, unnecessary cost and delay will be the result. Unrealistic timetables & Inconsistency in decision making by Judges
22. There is a risk that unrealistic trial dates and timetables will be set, particularly in heavy litigation, at an early stage, and of the judges insisting on their being adhered to thereafter, regardless of the consequences. 23. In research carried out for the Law Society, The Woolf Network Questionnaire (2002), some solicitors said they were reluctant to apply for sanctions against those who did not stick to the pre-action protocols. 24. This was because they felt that the courts were unwilling to impose sanctions for non-compliance in all but the most serious cases, judges were inconsistent in their approach to sanctions and an application for sanctions was likely to cause more delays and additional costs. Complexity 25. Zander, in “Zander on Woolf, New Law Journal, 13 March 2009”, also pointed out that the rules has not become simpler, it has become more complex. He referred to an article by Thompson QC where in it was said that: “In 1998, before the new rules came into force, the rules of procedure took up 391 pages of the County Court Practice...we now have three sets of rules which together with practice directions and protocols, cover 2301 pages of volume 1 of the Civil Court Practice, a 550% increase!”
Page57 Costs 26. Litigation can be very costly and state funding is often not available. The Woolf Network Questionnaire (2002) suggests that the cost of engaging in civil litigation has not been reduced by the civil justice reforms. 27. As Hazel Genn’s 1987 study showed, where only one party is insured, this can place great pressure on the other, unless they have been granted state funding. The insured side may try to drag out the proceedings for as long as possible, in the hope of exhausting the other party’s financial reserves and forcing a low settlement. 28. Zander, in “Zander on Woolf, New Law Journal, 13 March 2009”, said that: (1) There is universal agreement that costs has gone up referring to views of Professor Peysner and Michael Cook. (2) This was due to the central features of the Woolf Reforms – “early preparation of cases, early exchange of information between the parties, more cards of the table at an early stage. The result? Front-loading of costs”.
(3) Front loading of costs does not only apply to cases that go to trial but to the “overwhelming majority –well over 90% - that have always gone to trial”. (4) “Early better appreciation of facts is of little value if it adds significantly to the costs and makes little or no difference to the terms of settlement. Even if it affects the outcome, it may do so at a disproportionate cost”. Benefits of Woolf Reform according to Zander. 29. Zander, in “Zander on Woolf, New Law Journal, 13 March 2009”, is of the view that there is really only one benefit from the reform is that the culture is less adversarial now. Despite praising the Woolf reforms on this point he went on and said that “whatever feel-good benefits of a softer aspect to litigation practice, I find it difficult to believe that it has a significant pay-off for the parties themselves. My guess is that mostly it amounts to lawyers going through the motions of appearing to act reasonably in order to avoid an adverse costs order”. 30. There are some minor improvements in terms of the single joint expert rule and Part 36 offers (dealing with without prejudice offers for settlement which affects costs (previously known as Calder bank offers). Other Benefits of the Woolf Reforms 1. According to Peter Thompson QC, “Woolf’s litigants”, New Law Journal, 27 February 2009”, (a) there was high level of satisfaction with the small claims track cases (for cases where the claim are GBP5,000 and below general though for personal injury and housing repair claim it is GBP1,000 and below). The small claims track procedures provide a cheap and fairly speedy decision which can be appealed if seriously flawed. (b) The use of technology through the Money Claim Online (MCOL) a procedure that involve the issue through a virtual county court, with Northampton connections (which is opened 24 hours a days and which accepts credit card) was also a success. (c) The forms for appeals (N161 and N164) and judicial review (N461) are also easy to understand and use. These are areas where access to justice had been increased. (d) The provision of free advice by independent advisers and court staff to attend to litigant in person is also a good development. However, they cannot be expected to give legal advice so there is a limit to what can be achieved.
Page59 Chapter7: Judiciary – Selection CONTENTS:
A. The role of Judges B. Selection of Judges before the Constitutional Reform Act 2005 C. Criticisms of the earlier selection procedure D. Changes to the selection and appointment process for Judges in England and Wales – The Judicial Appointments Commission E. Amongst the main changes which the JAC has brought in are F. Strengths; and aims of the Judicial Appointments Commission G. Some issues with the Judicial Appointments Commission H. Consider developments in Malaysia and other countries I. The Human Rights Act 1998 and the selection of judges
A. THE ROLE OF JUDGES 1. Judges play a central role under the British Constitution. In addition to hearing and deciding cases, judges play a vital but sensitive role in controlling the exercise of power by the state, in particular through judicial review. 2. The passing of the Human Rights Act 1998 has significantly increased the powers of the judges to control the work of Parliament and the executive and to enforce human rights. This has drawn the courts into more sensitive areas. Hence it is very important that the right persons are selected as judges. 3. In contrast with other European Countries, e.g. in France, the English judiciary is not a professional career structure of its own with judicial trade unions to protect their interest. While judges in France may begin their career as a judge after law school, English judges are mostly appointed amongst practicing barristers and solicitors.
B. SELECTION OF JUDGES BEFORE THE CONSTITUTIONAL REFORM ACT 2005 1. Previously, all inferior judicial posts are made on the basis of open competition which consists of advertisements of vacancies in newspapers and legal journals. The referees provided by the candidates will be invited to comment on the suitability of the candidate, though none of the comments were available to the applicant. 2. For the senior posts, the senior Judiciary is consulted and the Lord Chancellor personally considered the applications before making recommendations to the Prime Minister. Such procedure labeled as ‘secret sounding’ was criticized for many reasons.
3. The method used was a secret sounding procedure. By this procedure, members of the judiciary and the legal profession were asked about their opinions about potential new Judges. The risk was that judges would recommend those barristers who had not caused trouble’ in court before and who seemed to agree with the views of the judge asked.
Page60 C. CRITICISMS OF THE EARLIER SELECTION PROCEDURE Judicial selection was one of the most criticized aspects of the English legal system. The old system was criticized for being overly secretive, not transparent, discriminatory, politically motivated and too reliant upon the support of an ‘old boys’ network resulting in judges who were not necessarily selected on the basis of merit. Some of the criticisms of the earlier selection procedure. (i) The lack of diversity in the composition of the judiciary. Judges mainly male, white, middle-upper class backgrounds, conservative and are largely public school with more than 70%. Women and ethnic minorities are riot well represented. The judiciary is unrepresentative of society as a whole. See composition of the judiciary in 2008. (ii) Risk of politicization - The Lord Chancellor and Prime Minister who played a central role in the selection procedure’ are politicians. There was a large concentration of power in the Lord Chancellor in the selection and appointment process. The Lord Chancellor was the only person to decide about the appointment of a judge (in case of the House of Lords, he had to propose the candidate to the Prime Minister who would then propose the candidate to the Queen. It was not appropriate for only one person to decide about the appointments of such senior judges. The fact that the LC was a political appointed member of the executive gave rise to the suspicion that appointments to the senior judiciary were politically motivated. Selection was a much closed affair and some say depended on a senior barrister’s connections. Although from 1995 on, posts in the High Court were advertised, the LC retained his right to invite candidates and made extensive use of this right. (iii) Secretive - The secret sounding method of selection was secretive, closed, dominated by patronage. Recent study has shown that 78% of judges were white, male, public school and Oxbridge educated. A Labour MP described this as a total failure of Labour politics. The consultation process was not open and neither can the applicant have a chance to counter any allegations made because he will not know what has been said. Since the appointment to the senior judiciary depended upon being ‘known’ by the senior lawyers and judges who are consulted over such appointment, there is a strong liking that such will disadvantage the blacks and the ethnic minority and women who tend to be outside the traditional networks. Such set-backs led to the highly supported Law Society’s Campaign in 1999 against the ‘secret sounding’ procedure
(iv) Discrimination - The process of ‘secret soundings’ gave real scope for discrimination, with lawyers instinctively falling back on gender and racial stereotypes in concluding whether someone is appropriate for judicial office. Judges are overwhelmingly white, male and middle to upper class, and frequently elderly, leading to accusations that they are unrepresentative of, and distanced from the majority of society. This also contravened Article 14 to the European Convention of Human Rights. (v) No official or formal procedures such as interviews. (vi) Contravened Article 6 and 14 of the European Convention of Human Rights. (vii) Owing to the above reasons, judges may not be selected based on merits.
Page61 D. CHANGES TO THE SELECTION AND APPOINTMENT PROCESS FOR JUDGES IN ENGLAND AND WALES– THE JUDICIAL APPOINTMENTS COMMISSION 1. The system of appointing judges in England and Wales changed with the introduction of the Judicial Appointments Commission, which has the responsibility for selecting judges. 2. This independent non-departmental public body was created on 3 April 2006 as part of the reforms following the Constitutional Reform Act 2005 and took over the responsibility that was previously in the hands of the Lord Chancellor and the Department of Constitutional Affairs (previously the Lord Chancellor’s Department) although the Lord Chancellor retains responsibility for appointing selected candidates. The JAC addresses some of the criticisms in the earlier selection process of the judiciary. It represents a significant departure from the old way of selecting candidates for judicial office by the Lord Chancellor. 3. The Lord Chancellor has also given up his other judicial functions, including the right to sit as a judge in the House of Lords. 4. From 3rd April 2006, the process for making judicial appointments involves the Judicial Appointments Commission (JAC) bearing the aim to appoint and the task to recommend the best qualified candidate regardless of their gender, ethnic origin, marital status, sexual orientation, political affiliation, religion and disability. 5. It takes over a responsibility that was previously in the hands of the Lord Chancellor and the Department for Constitutional Affairs (previously the Lord Chancellor’s Department), although the Lord Chancellor retains responsibility for appointing the selected candidates. 6. The Commission launched its new system on 31 October 2006 when it was to be used for the first time to select up to 25 new High court judges, with adverts appearing in the press. This laid out the approach adopted for future judicial appointments to courts and tribunals across England and Wales.
7. The Judicial Appointments Commission was given a statutory duty to ‘have regard to the need to encourage applications from a wider range of candidates.’ 8. The JAC which consists of 15 members, 6 of them being lay members, the rest being from the judiciary, tribunal, legal profession, seeks to appoint new judges solely on merits. This ensures the composition of the JAC represents a wide range of parties that ensures independence and impartiality. The current JAC Chairman. is ‘Baroness Usha Prashar CBE’. 9. The Commission will be responsible for the appointment of all judges except those of the Supreme Court (which will replace the House of Lords). Supreme Court judges will be appointed by an ad hoc commission that will propose suitable candidates to the Lord Chancellor who will then propose one of them to the Prime Minister who has to appoint him/her. 10. The role of the JAC is to select the judicial officers and recommend the best candidate for appointment. 11. The JAC will assess the suitability of candidates for upper judicial posts and select suitable candidates. It will then recommend a candidate to the Lord Chancellor. The Lord Chancellor may reject the candidate recommended and also ask the commission to reconsider and to recommend another candidate, but if he does so, he must provide reasons. In addition, he may only do this once. (However thus far all recommendations have been accepted) 12. At all levels, the JAC must make its selections on the basis of merit and good character and must take into account any guidelines issued by the Lord Chancellor. [Note – that the JAC does not currently recruit magistrates].
E. AMONGST THE MAIN CHANGES WHICH THE JAC HAS BROUGHT IN ARE (a) A new simplified definition of merit (i) the JAC has published the five core qualities and abilities required to make, a good judge. : intellectual capacity; personal qualities (integrity, independence, judgment, decisiveness, objectivity, ability, willingness to learn); ability to understand and deal fairly; authority and communication skills; and efficiency. (ii) A fairer system for filling High Court vacancies (b) all candidates must apply for vacancies, all short-listed candidates will participate in face-to-face discussions to explore their qualities and abilities, and references will be sought fairly and openly (i) A more streamlined and objective application process (c) the JAC has reduced the length of the old application form from over 20 pages to nine, and has introduced new, impartial processes for all judicial office-holders.
(i) Improved marketing of vacancies (d) the JAC’s advertising will be more prominent and better targeted to encourage more people to apply. In the press release accompanying the commencement of the new system, JAC Chairman Baroness Usha Prashar said: “These appointments to the High Court will be the first to be made on the recommendation of the JAC, using our new systems. The days of ‘secret soundings” and “taps on the shoulder’ are long gone. Today’s judicial applicants will be assessed on who they are, not who they know. In the six months since the JAC was established we have reviewed every aspect of the selection process, across all sectors of the judiciary, from where we advertise through to our final recommendation to the Lord Chancellor, and we have consulted widely. As a result we have refined the criteria for what makes a good judge, and we have streamlined and simplified the selection process. We are determined that our new system will be transparent, impartial and scrupulously fair. We have one of the most competent and highly respected judiciaries in the world. This reputation must be sustained and enhanced. Judicial office-holders will be appointed on merit, and merit alone. An important part of this is making sure we have the best possible choice of eligible candidates from the widest range of backgrounds to select from, that is. Searching for merit wherever it can be found The JAC is committed to improving diversity and widening the pool of judicial applicants.” (i) Candidates will submit a nine-page application form, and short-listed candidates will be interviewed. (ii) All candidates will be judged on merit measured by five core qualities: intellectual capacity; personal qualities (integrity, independence, judgment, decisiveness, objectivity, ability, and willingness to learn); ability to understand and deal fairly; authority and communication skills; and efficiency. (iii) The Judicial Appointments Commission is separate from the Commission for Judicial Appointments (CJA). The CJA was established in March 2001 to review the procedures for the appointment of judges and QCs. and to investigate complaints into those procedures. It closed on 31 March 2006 with the establishment of the Judicial Appointments Commission and the Judicial Appointments and Conduct Ombudsman (JACO). A separate Judicial Appointments Board for Scotland and Northern Ireland Judicial Appointments Commission undertake similar functions for Scotland and Northern Ireland, respectively.
Page62 F. STRENGTHS; AND AIMS OF THE JUDICIAL APPOINTMENTS COMMISSION (i) The JAC now selects the Judiciary candidates based on merit and does it independently of government through fair and open competition. This will encourage a wide range of applicants and contributes to an effective and impartial judiciary.
(ii) A positive aspect is that the secretive ‘invitation process’ is abolished. All potential judges will have to apply to the commission and pass through its selection procedure. The new process makes the assessment and selection process more open and transparent. (iii) Since a guiding principle for the commission is to select judges / candidates on merit (and on experience); it will reduce the aspect of patronage. (iv) Fact that 15 individuals will have to decide about appointment is reassuring especially since the panel does not only include judges but also lay members. (v) The CRA 2005 widens access to the judiciary by reducing requirements as to rights of audience. (vi) Likely to increase the number of women and ethnic minorities in the judiciary. (vii) Submitted JAC a better approach since the European style career judiciary or US style voting (e.g.) by the Commons or the public seem ill-suited to the English law tradition. (viii) Increases independence of selection and appointment system and gives a balance between independence and accountability (ix) Maintains the constitutional principle of The Queen acting on the advice of Ministers; (x) There is also the establishment of Judicial Appointments and Conduct Ombudsman that investigates complaints about the judicial appointments process and the handling of matters involving judicial discipline or conduct. Judicial Appointments and Conduct Ombudsman Annual Report - During the period of the report we handled applications from more than 2,500 candidates for judicial office and he received only 21 complaints. No complaints against the Judicial Appointments Commission were upheld. (xi) It is hoped that the Judicial Appointments Commission would put an end to the breaches of the principle of separation of powers and reinforce judicial independence. (xii) The JAC is a step in the right direction. It increases transparency and protects the UK judiciary from possible challenges under the ECHR. However some of the earlier problems in selection still persist. (xiii) Also see handout on diversity for additional points and steps taken to increase diversity.
Page63 G. SOME ISSUES WITH THE JUDICIAL APPOINTMENTS COMMISSION (i) The process is still governed by consultation and is still subject to political interference as government still has final say. (ii) The members of the JAC are appointed by the LC, so it remains to be seen whether there will be attempts to undermine the independence of the commission by a strategic selection of its members.
Politicians would still have a say in the selection process of the members of the Commission so that judicial independence would remain undermined. (iii) In creating the JAC the government has not given full appointment power to the Commission. This undermines the power of the Commission. The LC still retains the ultimate control of the procedure. He has the right to refuse a proposed candidate but must accept the next proposed candidate. May lead to strategic considerations inside the commission ex. should they put their real candidate as the second person proposed. However so far all the recommendations have been accepted. (iv) A spokesman for the Ministry of Justice confirmed that, although the JAC was now in charge of appointments, it still decided job requirements, after discussion with the Courts Service and senior judges. (v) The Judicial Appointment Commission should also see how a wider range of people can be attracted to the judiciary. See diversity notes. (vi) However, criticism has followed from the first year of appointments. The Guardian of 28th January 2008, for example reported that: The government’s attempt to reform the system for choosing judges to create a more diverse judiciary is failing to break the stranglehold of privately-educated white males over the high court bench. Although the new rules were designed to promote more women and ethnic minority candidates, all the judges appointed since they were introduced have been white male barristers and most were educated at independent schools. Keith Vaz, the barrister and labour MP who chairs the commons home affairs committee, was quoted as saying: that the system was no better at creating a more diverse judiciary: ‘It is actually worse. I would say, than when both Charlie Falconer and Derry Irvine (former Lord Chancellor) made the appointments. It is up to Jack Straw to say whether the government feels they are meeting the standard on the diversity issue.’ The Guardian review of selection shows that those appointed in the first selection exercise are remarkably similar to those selected under the old process. All ten are white male former barristers and six of the nine educated in Britain went to leading independent schools belonging to the Headmasters and Headmistresses’ Conference. The only unusual appointment was that of Ross Cranston, a former LSE law professor who comes from Australia and was educated there first. But he still fits the picture of a white male ex-barrister. (i) Under the first selection in October 2006, a total of 21 candidates had been approved to become high court Judges under the new system, 11 of whom are still awaiting appointment as suitable vacancies arise. Of those 11, three are women, which will change the gender balance slightly when they make it to the bench. But of the three ethnic minority candidates who applied, only one made the shortlist and was eliminated in the first cut. None of the seven solicitors who applied got as far as the shortlist.
(ii) However, five of the 22 High Court fudges announced on 7 October 2008 are women – bringing the total on the bench to its highest, at 17. Six months ago there were only 11 women among the 110 High Court judges in England and Wales, and five years ago only five. Only two of the five women have been named: Sonia Proudman, QC, who was sworn in yesterday as Mrs Justice Proudman, and Elizabeth Slade, QC, to be sworn in next month. Women applicants had a far higher success rate: 11 women and 118 men applied for the 22 posts. (iii) In 27selection exercises completed from 1 April 2007 to 31 March 2008, the JAC received a total of 2535 valid applications and 458 selections were sent to the Lord Chancellor. All of the JAC recommendations were accepted. (iv) The Law Society, which represents solicitors, says disproportionate weight is still given to the views of judges, with a negative effect on the number of women, ethnic minorities and solicitors who reach the bench. In its response to a government consultation paper on judicial appointments, the society accused the JAC of breaching a statutory code of practice on race equality by taking up reference at an early stage rather than after selection, creating a danger of ‘potentially subjective judgments.’ (v) The JAC responded by saying, ‘JAC appoints on merit and merit alone. We use selection processes that are open and fair to all applicants, regardless of their gender, race and background.’ The Ministry of Justice said: ‘Improving diversity is a complex challenge and cannot be achieved overnight, but we are committed to working closely with the JAC and Judicial Officer in driving forward this strategy.’
Page64 H. CONSIDER DEVELOPMENTS IN MALAYSIA AND OTHER COUNTRIES (i) Candidates are reminded that they should follow such debates with an eye to their own country. For, instance, considerable publicity has been given to the selection process for the judiciary in Malaysia and Bangladesh this year. (ii) Awareness of the widespread, perhaps global, nature of such concerns can only help students with the assessment materials that they produce.
I. THE HUMAN RIGHTS ACT 1998 AND THE SELECTION OF JUDGES Consider significance of the following: (i) Requires judges to balance individual rights against competing public interest claims (ii) Requires judges to engage in creative statutory interpretation, and, wherever possible to give effect to legislation in a manner that is compatible with Convention rights. (iii) Also note Art 6 and Art 14.
Students are advised to go to the JAC website at www.judicialappointment.gov.uk
Page65 Chapter8: Judiciary - Selection – Diversity CONTENTS: A. The role of Judges B. The selection process before the JAC, composition of the judiciary and the lack of diversity C. Composition of the judiciary in 2008 D. The importance of diversity E. Why specific groups are underrepresented or overrepresented? F. Changes to the selection and appointment process for Judges in England and Wales – The Judicial Appointments Commission G. Has the JAC been successful in creating diversity? H. Judiciary Update 2011
A. THE ROLE OF JUDGES 1. Judges play a central role under the British Constitution. In addition to hearing and deciding cases, judges play a vital but sensitive role in controlling the exercise of power by the state, in particular through judicial review. 2. The passing of the Human Rights Act 1998 has significantly increased the powers of the judges to control the work of Parliament and the executive and to enforce human rights. This has drawn the courts into more sensitive areas. Hence it is very important that the right persons are selected as judges and that there is diversity in the judiciary. 3. Unlike other European countries such as France where there is a career judiciary and judges may begin their career as a judge after law school, English judges are mostly appointed amongst practicing barristers and solicitors.
B. THE SELECTION PROCESS BEFORE THE JAC, COMPOSITION OF THE JUDICIARY AND THE LACK OF DIVERSITY.
1. Judicial selection was one of the most criticized aspects of the English legal system. The old system of appointing judges was criticized for being overly secretive, not transparent, discriminatory, politically motivated and too reliant upon the support of an ‘old boys’ network resulting in judges who were not necessarily selected on the basis of merit. 2. The old system of appointing judges was blamed for producing the current lack of diversity on the Bench –the concentration of older, white males, who come from narrow social and educational backgrounds. 3. Judges are mainly male, white, middle-upper class backgrounds, conservative and are largely public schooled with more than 70% being Oxbridge graduates. The old system had been criticized by the Labour peer and barrister Helena Kennedy as carrying an overwhelming potential for cloning’. Women and ethnic minorities are not well represented in the judiciary making the judiciary unrepresentative of society as a whole. 4. Recent study has shown that 78% of judges were white, male, public school and Oxbridge educated. A Labour MP described this as a total failure of Labour politics. Since the appointment to the senior judiciary depended upon being ‘known’ by the senior lawyers and judges who are consulted over such appointment, there is a strong liking that such will disadvantage the blacks and the ethnic minority and women who tend to be outside the traditional networks. 5. The process of ‘secret soundings’ gave real scope for discrimination, with lawyers instinctively falling back on gender and racial stereotypes in concluding whether someone is appropriate for judicial office. Judges are overwhelmingly white, male and middle to upper class, and frequently elderly, leading to accusations that they are unrepresentative of, and distanced from the majority of society. This also contravened Article 14 to the European Convention of Human Rights.
Page66 C. COMPOSITION OF THE JUDICIARY IN 2008. 1. All judges are barristers or solicitors. The majority of circuit judges and above are barristers but civil district judges are predominantly solicitors. 2. As of 1 April 2008, there were 11 white law lords one of whom was a woman Baroness Hale of Richmond. All were barristers. 3. Of all 37 all-white judges in the CA, one was a solicitor. Three were women. 4. Of the 108 High Court judges, one was a solicitor and 10 were women, one of whom was non-white. Linda Dobbs QC was the first ever black judge to be appointed to the senior judiciary in 2004. Five of the 22 High Court judges announced on 7 October 2008 are women – bringing the total on the bench to its highest, at 17.
5. More than 70% of the judiciary are public schooled and Oxbridge graduates. This lack of educational diversity is extreme. 6. The average age of a judge is 58 and the average age of a Law Lord is 66. – “a judiciary composed predominantly of senior citizens cannot hope to apply contemporary standards or to understand contemporary concerns. 7. Another reason for the lack of diversity in the judiciary is the lack of diversity in the legal professions as judges are appointed from amongst barristers and solicitors
D. THE IMPORTANCE OF DIVERSITY 1. Lord Mackay was of the view that “It is not the function of the judiciary to reflect particular sections of the community, as it is of the democratically elected legislature.” However Lord Irvine disagreed saying “I believe that the judiciary should be a microcosm of the community that it serves.” Lord Falconer considered the lack of diversity to be an urgent problem in 2004. 2. The 2004 DCA consultation paper on Increasing Diversity on the Judiciary said: “Society must have confidence in that the judiciary has a real understanding of the problems facing people from all sectors society with whom they come into contact... We must ensure that our ‘judicial system’ benefits from the talents of the widest possible range of individuals in fairness to all potential applicants and to ensure that talent, wherever it is, is able to be appointed.”
Page67 E. WHY SPECIFIC GROUPS ARE UNDERREPRESENTED OR OVERREPRESENTED? The exclusion of solicitors 1. In 2008 there were still only two solicitors in the entire senior judiciary. 2. The system made it much easier for barristers to become judges as the solicitor’s route onto the bench was to become a recorder or district judge and seek promotion, or gain rights of audience as a solicitor advocate, which very few solicitors have dome. 3. This, provoked the criticisms that the system was unfair and produced too narrow a pool of candidates, because there are always about 10 times more solicitors than barristers and they come from more diverse social backgrounds. 4. A spokesman for the Ministry of Justice confirmed that, although the JAC was now in charge of appointments, it still decided job requirements, after discussion with the Courts Service and senior judges.
The emphasis on silk 1. Around half of the HC judges now in office were recruited from QCs, as were many circuit judges. 2. Solicitors, women and ethnic minorities alleged that this was unfair, because the selection system for silks disadvantaged them, because of the emphasis on advocacy and because appointments to silk were (and are) very unrepresentative of such groups, the method of recruitment to silk also being based on the same ‘consultations’ system as was used to select judges. 3. Lords Irvine and then Falconer tried to reassure lawyers that the silk system would not be used as a passport to the judiciary. Race 1. Judges were predominantly white and ethnic minorities were not well represented. 2. In 1991, Bindman suggested that the old system was indirectly discriminatory and thus illegal. He cited the, Commission for Racial Equality’s code of practice for employers, which discouraged recruitment through the recommendations of the existing workforce where the workforce was predominantly from one ethnic group and the labour market multi-racial. 3. The old method of selecting judges also contravened Art 14 of the European Convention of Human Rights. Gender - The exclusion of women 1. The judicial atmosphere was unwelcoming to women. Women were disadvantaged b the existence of male clubs, where judges and barristers lunched. The Inns of Court and freemasonry provided opportunities for male barristers to fraternize with judges. 2. Malleson and Banda (2000) found that white female barristers felt the demands of practice put them off applying for judicial office, as did a lack of confidence in being taken seriously. 3. Another problem was that the vast majority of successful candidates to the High Court bench are drawn from practicing members of the Bar. Yet the Bar is a profession in which it is difficult for women to excel, and extremely difficult to excel if there are home commitments. 4. Patrick argued ‘the quality of judicial performance would be improved if more of the bench enjoyed the experience peculiar to more than half the members of our society. 5. Baroness Hale argued that the judiciary needed more women as it would promote public confidence, be symbolic, as the judiciary are required to promote equality and fairness, be a sound use of human resources, tapping the intellectual qualities of the missing half of the population and bring a different perspective to judgments. 6. However American research disclosed little difference between male and female judicial decisionmaking.
7. One might hope that diversifying the judiciary would increase their range of skills and experience which would enhance decision-making in general but the real reason for including under-represented groups was that “the corrosive impact of their absence on the legitimacy of the judiciary is now too great to ignore.” Gays and lesbians 1. Sir Adrian Fulford, Britain’s first openly gay judge, recently described his ‘bizarre and depressing’ experience of applying for judicial appointment to be an assistant recorder in 1994. The men interviewing him tried to convince him to withdraw his application and asked him a lot of questions about his private life. However Sir Adrian Fulford said that “we have come a long way” *since his experience 15 years ago]. First Lord Irvine and then Lord Falconer ensured that what he experienced became a thing of the past. Sir Adrian was appointed to the High Court bench in 2002 -the, first time an openly gay barrister was so promoted. Then in 2003 he was elected to serve on the International Criminal Court. 2. The only other openly gay judge is Sir Terence Etherton, who last September became the first such judge to go to the Court of Appeal. He was appointed to the High Court in 2001 and then announced his own civil partnership in The Times in 2006.
Page68 F. CHANGES TO THE SELECTION AND APPOINTMENT PROCESS FOR JUDGES IN ENGLAND AND WALES– THE JUDICIAL APPOINTMENTS COMMISSION 1. The system of appointing judges in England and Wales was changed with the introduction of the Judicial Appointments Commission, which has the responsibility for selecting judges. 2. This independent non-departmental public body was created on 3 April 2006 as part of the reforms following the Constitutional Reform Act 2005 and took over the responsibility that was previously in the hands of the Lord Chancellor and the Department of Constitutional Affairs although the Lord Chancellor ret. 3. The JAC addresses some o the criticisms in the earlier selection process o the judiciary and represents a significant departure from the old way of selecting candidates for judicial office by the Lord Chancellor. 4. The Judicial Appointments Commission (JAC) has the aim to appoint and the task to recommend the best qualified candidate (based on merits) regardless of their, gender, ethnic origin, in marital status sexual orientation, political affiliation, religion and disability. 5. The Commission launched its new system on 31 October 2006 when it was to be used for the first time to select up to 25 new High court judges, with adverts appearing in the press. This laid out the approach adopted for future judicial appointments to courts and tribunals across England and Wales.
The Lord Chancellor retains responsibility for appointing selected candidates. JAC replaced informal appointment by the Lord Chancellor, which was criticized for discriminating against women and ethnic minorities. ‘The JAC was given a statutory duty to have regard to the need to encourage applications from a wider range of candidates.’ 6. The JAC which consists of 15 members, 6 of them being lay members, the rest being from the judiciary, tribunal, legal profession, seeks to appoint new judges solely on merits. The composition of the JAC represents a wide range of parties that ensures independence and impartiality and diversity. The current JAC Chairman. is ‘Baroness Usha Prashar CBE’. 7. The Commission will be responsible for the appointment of all judges except those of the Supreme Court (which will replace the House of Lords). Supreme Court judges will be appointed by an ad hoc commission that will propose suitable candidates to the Lord Chancellor who will then propose one of them to the Prime Minister who has to appoint him/her. 8. According to Baroness Prashar, attempts to make the selection process fair, for example by introducing qualifying tests to shortlist candidates, have been extremely controversial. So much so that some are beginning to crave the old system of ‘tap on the shoulder’. Some suggest that qualifying tests will lead to a mediocre judiciary because those who are seen as ‘star advocates’ are not all shortlisted at first attempt. 9. However, according to Baroness Prashar, this is an odd conclusion to draw. She said that the JAC is looking for judge-craft skills and not advocacy skills. In any event, there are difficulties with any short listing method. Qualifying tests, which the JAC is constantly working to improve, are fairer, more objective and more reliable than any other option.
Page69 G. HAS THE JAC BEEN SUCCESSFUL IN CREATING DIVERSITY? (i) The independent Judicial Appointments Commission (JAC) in 2006 was designed to end the old ‘tap on the shoulder’ method of recruiting and ‘secret soundings’ among existing judges, which produced a senior judiciary that was almost exclusively white and male. In the press release accompanying the commencement of the new system, JAC Chairman Baroness Usha Prashar said: “The days of ‘secret soundings” and “taps on the shoulder’ are long gone. Today’s judicial applicants will be assessed on who they are, not who they know we have one of the most competent and highly respected judiciaries in the world. This reputation must be sustained and enhanced. Judicial officeholders will be appointed on merit, and merit alone. An important part of this is making sure we have the best possible choice of eligible candidates from the widest range of backgrounds to select from, that
is, searching for merit wherever it can be found. The JAC is committed to improving diversity and widening the pool of judicial applicants.” (ii) With the secret invitation process abolished, the JAC now selects the judiciary candidates based on merit and does it independently of government through fair and open competition. This will encourage a wide range of applicants and contributes to an effective and impartial judiciary. (iii) JAC chair Baroness Prashar said that for the judiciary to diversify, it was necessary for the legal profession to make itself diverse. She defended the JAC against judicial accusations that they were responsible for the shortage of judges. (iv) Keith Vaz, the barrister and Labour MP who chairs the commons home affairs committee, was quoted as saying that the new system was no better at creating a more diverse judiciary: ‘It is actually worse. I would say, than when both Charlie Falconer and Derry Irvine (former Lord Chancellor) made the appointments. It is up to Jack Straw to say whether the government feels they are meeting the standard on the diversity issue.’ (v) The Guardian review of selection shows that 10 out of the 21 appointed in the first selection in September 2006 are remarkably similar to those selected under the old process. All ten are white male former barristers and six of the nine educated in Britain went to leading independent schools belonging to the Headmasters and Headmistresses’ Conference. The only unusual appointment was that of Ross Cranston, a former LSE law Professor who comes from Australia and was educated there first. But he still fits the picture of a white male ex-barrister. The Guardian of 28th January 2008, for example reported that the government’s attempt to reform the system for choosing judges to create a more diverse judiciary is failing to break the stranglehold of privately-educated white males over the high court bench. Although the new rules were designed to promote more women and ethnic minority candidates, all the judges appointed since they were introduced have been white male barristers and most were educated at independent schools. (vi) Of the remaining 11 who were waiting to be appointed, three were women, which will change the gender balance slightly when they make it to the bench. But of the three ethnic minority candidates who applied, only one made the shortlist and was eliminated in the first cut. None of the seven solicitors who applied got as far as the shortlist. (vii) However, women are finally breaking through the glass ceiling of senior judicial appointments. Five of the 22 High Court judges announced on 7 October 2008 are women – bringing the total on the bench to its highest, at 17. Six months ago there were only 11 women among the 110 High Court judges in England and Wales, and five years ago only five. Only two of the five women have been named: Sonia Proudman, QC, who was sworn in yesterday as Mrs Justice Proudman, and Elizabeth Slade, QC, to be sworn in next month. Women applicants had a far higher success rate: 11 women and 118 men applied for the 22 posts. Baroness Prashar, chairman of the Judicial Appointments Commission, welcomed the recent increase in the number of women on the High Court Bench. She said: “We are delighted we are
making progress. The legal profession and the judiciary are becoming more diverse, and we expect the composition of the senior judges will gradually come to reflect those changes.” (viii) Women and ethnic minorities have punched above their weight in the selections for recorderships but solicitors fared proportionately badly compared with barristers, new figures from the Judicial Appointments Commission show. (ix) Alexandra Marks a solicitor who has succeeded in being appointed a recorder said “Although the Ministry Of Justice cites figures showing more women, ethnic minorities and solicitors generally solicitor being appointed to judicial posts, most of these are at the lower levels, such as to tribunals. There’s nothing wrong with that, but it is the position of recorder that is the stepping-stone to the senior judiciary. Tribunal posts rarely lead to senior judicial posts.” (x) The CRA 2005 widens access to the judiciary by reducing requirements as to rights of audience which should increase the number of solicitors in the judiciary. (xi) The JAC should also see how a wider range of people can be attracted to the judiciary. It is the job of the JAC to devise methods of securing greater diversity. In October 2008, the Judicial Appointments Commission (JAC) has commissioned independent research (by the British Market research Bureau) on barriers to entry to find out from solicitors and barristers what attracts them to - or puts them off from applying to be a judge. The research will further assist the JAC to be more specific and targeted in attracting a wider range of candidates for judicial appointments. (xii) A judicial diversification strategy was launched in 2007. Its aims were predictably to widen the range of people eligible to apply but also to ensure that the culture and working environment for judicial office- holders encourages and supports a diverse judiciary and increases understanding of the communities served.’ A five-point plan to encourage more solicitors to apply for judicial office was launched by the minister for judicial diversity in 2007, including publicizing the benefits to the individual and their firm. (xiii) Improved marketing of vacancies: the JAC’s advertising will be more prominent and better targeted to encourage more people to apply. (xiv) Lord Judge said “We must do everything we can to achieve wider judicial diversity. We must make sure that the pool of eligible candidates for consideration for judicial appointment is as wide as it can possibly be, and that all eligible candidates at least consider whether to seek a judicial career.”
Page70 1. SOME PROBLEMS IN CREATING DIVERSITY (i) The Law Society, which represents solicitors, says disproportionate weight is still given to the views of judges, with a negative effect on the number of women, ethnic minorities and solicitors who reach the
bench. In its response to a government consultation paper on judicial appointments, the society accused the JAC of breaching a statutory code of practice on race equality by taking up reference at an early stage rather than after selection, creating a danger of ‘potentially subjective judgments.’ The JAC responded by saying, ‘JAC appoints on merit and merit alone. We use selection processes that are open and fair to all applicants, regardless of their gender, race and background.’ The Ministry of Justice said. ‘Improving diversity is a complex challenge and cannot be achieved overnight, but we are committed to working closely with the JAC and Judicial Officer in driving forward this strategy. (ii) Recently, senior women judges have also expressed concern that moves to create a more diverse judiciary are failing to have any impact in boosting the numbers of women judges. Mrs Justice Dobbs, one of only ten High Court women judges and the only one from the ethnic minorities, said earlier this year that the proportion of women judges remains “disappointing”. Note however that five of the 22 High Court judges announced on 7 October 2008 are women. She said that while appointment had to be on merit, merit should take account of different but equal kinds of contributions that women can make. The interviews with women lawyers found that some feared that the environment in court would be hostile to women and some were concerned about the lack of female role models. (iii) The judiciary is losing out on some of the best talent in the legal profession because the work of a High Court fudge is perceived as fusty, old-fashioned and underpaid. Research published on Jan 8 2009 shows that highly qualified lawyers are put off from applying to be High Court judges because the job requires a big cut in salary and the lifestyle is seen as unattractive and lonely. The findings are contained in the first research into the “attractiveness” of senior judicial appointments, after concerns that many top lawyers do riot want to be judges. There is concern that women, ethnic minority lawyers and solicitors are not applying for judicial posts in the numbers that they might. (iv) As well as the financial sacrifice, other deterrents include the high workload, the need to travel around the country and staying away from home for up to six weeks at a time. Lord Judge said that many of the perceptions were outdated and did not reflect the changed reality of life as a High Court judge. (v) Lord Judge lamented the “slow trickle” of solicitors coming forward for judicial jobs which still lack sufficient candidates who are women, from ethnic minorities and from less traditional backgrounds. He said to few applied for judicial posts. One reason, he said, might be a reluctance of partners in law firms to release younger partners for part-time judicial posts, a necessary step towards full-time appointment. Lord Judge suggested persuading “the major firms to allow some of their younger partners to seek parttime appointment as part and parcel of their pro bono activities.” (vi) Lord Judge, the Lord Chief Justice has said that the economic recession could hit efforts to diversify the judiciary by bringing in candidates from less traditional backgrounds. (vii) Given the fact that the radical reforms to judicial appointments in the 2005 Act were in train, it was surprising that one of the first acts of Gordon Brown’s cabinet in 2007 was to publish yet another consultation paper, The Governance of Britain: Appointing Judges. Zander called it “A waste of space”. Coming just a year after the establishment of the JAC, it was ridiculous” He attacked the implicit
suggestion that the judiciary should change to reflect “the communities of Britain”, as judges do not serve communities. They serve the law, the administration of justice and in a vague sense the community and ‘The very idea the Parliament should exercise a role in the making of judicial appointments send shivers down the spine of lawyers.”
Page71 2. RECENT DEVELOPMENTS (i) The Lord Chancellor Jack Straw announced on 28.4.2009 he had set up an Advisory Panel on Judicial Diversity chaired by Baroness Neuberger with the following terms of reference: To identify the barriers to progress on judicial diversity and to make recommendations to the Lord Chancellor on how to make speedier and sustained progress to a more diverse judiciary at every level an in all courts in England and Wales. [The panel is asked to report back to the Lord Chancellor by November 2009.] (ii) The Judicial Appointments Commission said: “It is important that the Lord Chancellor has established this panel. We have always said that open competition to encourage diversity will be helped by the professions becoming more diverse, by allowing more part-time working, and by removing barriers such as a requirement that candidates for salaried posts should normally have worked first in a fee paid capacity. (iii) According to Baroness Prashar (Judicial Appointment: a work in progress, (2010) LS Gaz, 18 Feb,) statistics published by the JAC in 2010 showed that 13% of those selected in the recent South East Recorder exercise were from ethnic minorities, compared with 7% in the eligible pool, and the proportion of candidates with a disability selected, 3%, equaled those who had applied. The number of women in the High Court has increased by almost 50% since the JAC was established. 2009 has seen the appointment of former solicitors to both the High Court and, for the first time, the Supreme Court. Students are advised to go to the JAC website at www.judicialappointment.gov.uk Also look at the most recent selections and see if there is diversity in the selection.
H. JUDICIARY UPDATE 2011 New Chairman Christopher Stephens takes over as the new Chairman of the JAC for 3 years from February 7, 2011. Judges salaries Salaries generally lower than applicants would earn in private practice – salaries in 2009 ranged from just under £240,000.00 for the Lord Chief Justice to just over £128,000.00 for a Circuit Judge and just under £103,000.00 for a District Judge or Employment Tribunal Chair.
Diversity – UK gay and lesbian community under-represented. (i) The judiciary is failing to reflect the UK's gay and lesbian community – lesbian, gay, bisexual and transgender (LGBT) law network. Interlaw has found that judicial culture, the perception of hostility to gay judges and the isolated nature of the job are deterring gay and lesbian lawyers from applying for careers as judges. The study also suggests that gay and lesbian lawyers fear that their private lives may be subject to additional scrutiny if they were to become judges. (ii) "One of the problems for the legal sector is that there isn't really a level of acceptance yet around the need for sexual diversity," said Pat Corcoran, head of diversity and equality at the Law Society. (iii) The JAC said it was concerned with the under-representation of LGBT judges, but that its diversity strategy focused on encouraging solicitors, women, ethnic minorities and people with disabilities to become judges. Ken Clarke, justice secretary - "The appointments process must fully respect and maintain the independence of the judiciary, and appointment on merit must remain absolutely at the heart of the process." Solicitors vie for judicial office - 08 July 2010 by Catherine Baksi (i) The number of applications from solicitors for the role of civil district judge almost doubled in the last selection round, according to data published by the Judicial Appointments Commission (JAC) last week. (ii) The number of applications from ethnic minority candidates more than quadrupled, from 16 applications in 2007/08 to 67 in 2009/10, though the percentage of ethnic minority applicants recommended for office fell to 9%, down from 25% in the previous exercise.
Page72 A review of the judicial appointments process and related arms-length bodies has made initial recommendations –10 November 2010 (i) Both the Judicial Appointments Commission (JAC) and the Judicial Appointments and Conduct Ombudsman will be kept to help ensure transparency and openness. (ii) Lord Chancellor Kenneth Clarke said in answer to a Parliamentary question that the 'valued and independent' bodies would remain in place, but would be expected to make savings. 'It is clear that at times the appointments process can take too long and cost too much,' Mr Clarke said. 'The first duty of the Commission is to maintain the high quality of judicial appointments but I believe that the JAC should also focus on delivering efficiency in the selection of judges, working with the judiciary and the unified Courts and Tribunals Service.' (iii) Judge Goolam Meeran QC - the new qualifying test and role-play exercises were a better way of testing the judicial ability of candidates than an application form and 45-minute interview. The old system, he said, gave an advantage to good ‘form-fillers’ and disadvantaged certain other people who
had the qualities and abilities for a judicial appointment. He said one crucial factor in determining whether the JAC succeeds in achieving a more diverse judiciary would be whether enough candidates from a wide range of backgrounds applied.
Page73 Chapter9: Jury CONTENTS: A. Introduction B. Roles of Jury C. Secrecy of Jury Deliberation D. Rationale of Jury Secrecy Rule E. Excluded Groups and excused from Jury Service F. Other Problems G. Are Juries Fair? (Ministry of Justice Research Series 1/10, 2010) H. Jury Conviction Rates I. Comprehension of Judicial Directions J. Recommendations K. Further Research
A. INTRODUCTION 1. The basic qualifications for a juror are: (a) Age between 18 to 70; (b) Be registered as a voter; and (c) Have been ordinarily resident in England and Wales for a period of five years since they were 13 years of age.
2. They are all lay persons who nevertheless make legally binding decisions within the English legal system, jurors stand out as being unique even within this group. Jurors have no qualification in terms of knowledge or skill which distinguishes them from others within England and Wales. 3. Moreover, they are not merely untrained: since they sit as jurors for only a short time they do not even acquire that knowledge that comes with experience. Jurors normally sit for a period of about two weeks (Royal Commission on Criminal Justice, Report (1993) Cm. 2263, HMSO, London, p. 136). During this time they may hear several cases but their growth in experience cannot be compared with that of a lay magistrate or a wing person on a tribunal. 4. The merits of the jury system are as follows: (1) It prevents the application of unpopular laws; and (2) It allows truth to be established against a background of community values and sentiment. 5. However the disadvantages of the jury system are: (1) They are too quick to acquit. (2) Their decisions are sometimes based on rational as well as irrational considerations 6. In order to assess which of the above views are right or accurate, one cannot simply inquire into what the jury does and then decide whether or not it is performing at a satisfactory level. One must first establish what role or roles the jury should have.
Page74 B. ROLES OF JURY 1. Contrary to the perception of lawyers, the role of the jury is not to find out the truth but its role is really to validate the truth for the following reasons: (i) Juries have a democratic role to play. The jury is there to represent community values, even sometimes when they run counter to the dictates of the law. (ii) Juries are there to decide what behavior is permissible, and when they find the behavior permissible, to find a defendant not guilty. It is precisely the fact that juries may make decisions which lawyers, using legal criteria, consider to be wrong which gives the jury its place in the legal system. (iii) Gobert describes the power to return non-appealable perverse verdicts as evidence that the function of the jury is not mere fact-finding, but to assess whether the defendant is morally blameworthy and whether justice, according to community standards, would be done by convicting in accordance with the law.
2. Nevertheless, the following are the flaws in this argument about jury representing the communities: (i) It ascribes to the jury an ability to represent a single community; and (ii) It leaves at risk the person who stands outside the community. A randomly selected jury might find it difficult to represent any single community and might find this task even more problematic in the context of a pluralistic multi-cultural society. 3. There is also a danger that the jury may find a defendant’s actions guilty because they live outside the self-same community morality although they and other objective observers would say that they act within the law.
C. SECRECY OF JURY DELIBERATION 1. Assessing the functioning of the jury is made still more difficult by the operation of S 8 of the Contempt of Court Act 1981. This makes it a criminal offence to attempt to inquire into how decisions in actual cases were made in the jury room. 2. The secrecy of the jury room is maintained in all but the most extreme cases of irregularities. In a recent case the Court of Appeal refused to investigate allegations of racial bias amongst jurors that came to light only after the defendant was convicted. In R v Mirza, Lord Steyn stressed the context of the problem: (a) The accused is entitled to trial before an `impartial tribunal’ and, should there be allegations that the tribunal showed bias, then there must be a robust way of examining this allegation. (b) How does this ‘fundamental’ fair trial guarantee sit alongside the common law rule that prevents any examination of the jury’s deliberations? (c) What are the risks of this approach? (d) It would appear that the law places the `efficiency of the jury system’ above the possibilities of `miscarriages of justice’. More specifically, we will see that the law is consistently downplaying the ‘corrosive’ effect of racism within the jury. 3. We need to examine the leading cases. In Gregory v UK, 25 February 1997 evidence emerged of jury bias. (i) After the jury had retired to consider its verdict a note was passed to the Judge which read: `Jury showing racial overtones. One member to be excused’. (ii) The judge went on to show the note to both the prosecution and the defence, and warned the jury that they had to ignore any prejudice and try the case on its facts.
(iii) The jury found the defendant guilty by a verdict of 10 to 2. The applicant argued before the ECtHR that he had not received a fair trial and his rights under Article 6 and Article 14 had been breached. (iv) The ECtHR did not agree with him. They began from the principle that it was of `fundamental importance’ that the criminal courts maintain the confidence of the public, and to this end it was necessary to ensure that they were `impartial’ decision-makers. (v) In Gregory, the court held that the rule that maintained the secrecy of jury deliberations was `crucial and legitimate’ to the operation of common law courts, as it guaranteed `open and frank deliberations among the jurors’. (vi) They then distinguished Gregory’s case from another important authority, Remli v France 22 EHRR 253. In Remli, the judge had not taken any action when a member of the jury had been overheard saying that he was a racist. The ambiguous nature of the note that the judge received in Gregory meant that the judge’s actions were reasonable.
Page75 4. In Sander v United Kingdom, 9 May 2000: (i) Sander had been convicted of conspiracy to defraud but his trial was adjourned because the judge received a complaint from one of the jurors that two other members of the jury had been making racist comments. (ii) The judge then received a letter from one of the jurors apologizing and a letter from the jury as a whole denying racial prejudice. Rather than discharging the jury, the judge chose to redirect them. (iii) The applicant argued that this was a fundamental error that deprived him of a fair trial. As there was a real danger of bias, the jury should have been discharged. (iv) The ECtHR argued that there had been a breach of Article 6 and held that the impartiality of the decision-maker must be presumed until there is evidence to the contrary and, on these facts, there was evidence that the jury was racially biased. (v) The judge was not sure that there was not actual bias in the jury, and should have made further investigations. On these facts, the applicant had not received a fair trial. What seems central to the reasoning of the court is that the judge `had both been informed of a serious allegation and received an indirect admission that racist remarks had been made’. (vi) In such a situation, the judge should have discharged the jury. It would appear that the distinction between Gregory and Sander is one of differences of fact. 5. In Mirza, the House of Lords affirmed the centrality of the secrecy rule to the workings of the jury, even if this meant that the partiality of the jury could not be examined. The general common law rule
was that the court would not investigate, or receive evidence about, anything said in the course of the jury’s deliberations while they were considering their verdict in their retiring room.
D. RATIONALE OF JURY SECRECY RULE 1. Attempts to soften the rule to serve the interests of those who claimed that they were unfairly convicted should be resisted in the general public interest, if jurors were to continue to perform their vital function of safeguarding the liberty of every individual. 2. The underlying rationale of the jury secrecy rule is explained in the Canadian of case of R v Pan: (a) Secrecy allows jurors to consider the aspects of the case `without fear of exposure to public ridicule, contempt or hatred’. (b) The virtue of secrecy is that it also allows the jurors a degree of protection from `harassment’ and `reprisals’, an important consideration in the criminal trial. (c) Furthermore, as the case might concern an `unpopular accused’ or someone `charged with a particularly repulsive crime’, this requirement protects the integrity of the decision-making process. 3. Another rationale is that it stresses the `finality’ of the jury’s verdict. This is perhaps less convincing in a legal system that allows appeals and reviews of decisions, and should not perhaps `trump’ other due process values. 4. In Mirza, Lord Slynn described the other safeguards that protected both the composition and the integrity of the jury: (a) The principle of random selection means that it is composed of a cross-section of the population who are acting on oath. (b) The judge gives directions and allows irregularities to be dealt with effectively, as does the possibility of an appeal. 5. There are also exceptions to the secrecy rule: (a) These exceptions relate to those instances when the jury is allegedly affected by `extraneous influences’; and (b) Or when `the jury as a whole declined to deliberate at all, but decided the case by other means such as drawing lots or by the toss of a coin’ then the court would intervene, as such behavior would `amount to a complete repudiation by the jury of their only function which, as the juror’s oath put it, was to give a true verdict according to the evidence’.
Page76 6. Lord Hobhouse pointed out that since Section 17 of the Juries Act 1974 (which requires majority, rather than unanimous verdicts) there will always be situations where the views of one or two jurors have not been followed. The system itself contains sufficient checks to guarantee the legitimacy of the result. Besides, without definite evidence of `actual bias’, the bias of an individual cannot affect the decision. 7. The Auld Review recommended that S 8 should be amended to allow for wider inquiries by the Court of Appeal into alleged jury impropriety. The composition of the jury Qualification criteria 8. The first problem with the jury lies in the idea that it is a randomly selected group taken from society as a whole. 9. The basic qualifications to be a juror have already been noted. Even these basic qualifications discriminate on grounds of age, residence and willingness or ability to register to vote. 10. Home Office research shows that about 8 per cent of those eligible to vote are not on the electoral register. This convinced the Auld Review that the juror pool should be widened by reference to other lists i.e., “inclusion in such a roll and/or on any one or more of a number of publicly maintained lists or directories, but excluding anyone listed, who, on investigation at the summons stage, is found not to be entitled to registration as an elector”. In other countries the electoral register is supplemented by other lists, like telephone directories, because young, mobile and ethnic minority populations are underrepresented on the electoral register (see Darbyshire et al. (2001) pp. 8-10). As yet this has not been done.
E. EXCLUDED GROUPS AND EXCUSED FROM JURY SERVICE 1. The Auld Review took the view that no one should be ineligible for jury service simply because of his or her occupation. In recommending that judges and others involved in the administration of justice should be eligible to serve on juries and dismissed objections that due to their professional status they might unduly influence other jurors, be prejudiced, or use insider knowledge of the system to make educated guesses about matters not always disclosed to the jury, such as previous convictions. 2. In the past individuals have been able to avoid jury service because they are excused as of right or because they can show good reason. Excusal of jurors can significantly affect the composition of the jury. 3. Evidence considered by the Auld Review showed that 38 per cent of jurors called for service are able to avoid it. It is mainly professionals and self-employed people who apply to be excused on the basis
that their businesses may suffer, or parents who apply on the basis that they are unable to make alternative childcare arrangements. 4. Auld LJ recommended a reduction in those excused as of right, a clamp-down on discretionary excusal, greater use of deferral and the introduction of fines for those who fail to turn up for service. The Criminal Justice Act 2003 eliminated excusal as of right (except for serving military personnel) and the categories of ineligibility.
F. OTHER PROBLEMS 1. An important deterrent may well be risk of loss of earnings. The Royal Commission recommended an urgent review of financial loss allowances. 2. There is also the problem of poor facilities and perhaps the number of jurors 12 is too high? Prosecution and Defence’s affect on the jury 1. The principle of random selection of jurors is eroded by the powers of both prosecuting and defending barristers to affect the composition of the jury. 2. The defence have the right to exclude jury members for cause by showing that there is something about them that will affect their ability to perform the job of juror. 3. However, the defence can only question potential jurors if they know something about them which suggests that they might not be suitable to act as a juror. 4. Thus this right is of very restricted value. The prosecution can ask jurors to stand by for the Crown. The effect of this is that a juror so challenged returns to the jury panel from whom the individual jury is selected. The reason for the rejection of the juror will only have to be examined if there are insufficient jurors on the panel who the Crown does not challenge to form a jury. 5. The prosecution has the right to vet juries to see whether disqualified persons, and in limited circumstances people of extreme political views, are on the jury panel. The results of such vetting can then guide the prosecution barristers’ use of their power to ask jurors to stand by for the Crown.
Page77 Ethnic minorities 1. The asymmetry of defence and prosecution powers to affect the composition of the jury has presented particular issues in relation to ethnic minority defendants.
2. Some studies have suggested that people from ethnic minorities are likely to be under-represented on juries. In 65 per cent of cases there were no non-whites on the jury. In Ford the Court of Appeal has held that there is no right to a multiracial jury. 3. Zander and Henderson’s survey showed in 83 per cent of all eases, defence barristers had no concerns about the composition of juries. However, where there was any concern, the greatest concern related to the racial mix of juries. 4. Of defence barristers expressing concern about jury composition, 23 per cent expressed concern about the racial mix of the jury and this concern was expressed six times more frequently if the defendant was black than if the defendant was white. 5. Traditionally the courts have rejected the idea that judges should interfere with jury composition to secure racial balance. The Royal Commission accepted that in exceptional cases a black defendant should have a right to have at least three black jurors upon application to the Judge. This the Judge would grant only if the applicant’s case was reasonable because of some special feature. 6. This recommendation was not acted upon but the Auld Review also suggested that there should be provision for ethnic minority jurors in cases where race is likely to be a relevant issue in the trial. Trial 1. Where trial takes place, argument can either be about the factual situation (whether there was the actus reus) or the state of mind of the accused (whether there was the mens rea). In Zander and Henderson’s survey, in 40 per cent of all cases the defendant admitted the facts arguing only over the question of mens rea. 2. Depending on the particular mens rea of the offence, the trial can become a contest over whom the jury believes about the subjective beliefs of the defendant at the time of the events in dispute. Notwithstanding the legal requirement for the prosecution to prove their case, in practice the onus of proof may become that of the defence. 3. The jury must assess the witnesses called by each side in the light both of the initial examination of the witness and the subsequent cross-examination. Before the jury come to make their decision, the judge will sum up the evidence for them. Influence of a Judge in summing up 1. This summing up should be a neutral recapitulation of the important points in the trial. However, in Zander and Henderson’s survey, between 20 and 37 per cent of lawyers questioned thought that in a particular case the judge’s summing up had been against the weight of evidence presented. 2. In theory, this summing up should be the only means by which a judge commits their view of a case to the jury. However, in Zander and Henderson’s survey, in 16 per cent of cases prosecution barristers
reported that a judge had indicated his or her view of a case by tone of voice or body language, while 35 per cent of defence barristers reported the same phenomenon. 3. Both prosecution and defence barristers reported more instances of the judge indicating approval of the prosecution case than the defence case. In recent years, the power of judges to intervene in cases, to control cross-examination and to protect vulnerable and intimidated witnesses has increased. As their control over the conduct of trial has increased, so it may be argued has their possible influence over the verdict.
Page78 The further demise of jury trial 1. Some of the recommendations in the Auld Review could be interpreted as bolstering the jury system. Others undoubtedly can be seen as further eroding its already limited practical significance in the English legal system. 2. In addition to recommending that complex and serious cases be diverted from jury trial, Auld LJ recommended that defendants should have the right to apply for trial by judge alone in the Crown Court. The Government has endorsed these recommendations, but the provision for jury waiver did not make it into legislation. Eventually the Criminal Justice Act 2003, made provision for trial without jury in complex and lengthy fraud cases, and cases where there is a danger of jury interference. 3. The rationale of these provisions has been challenged and there may yet be considerable resistance to bringing into force the provision for fraud cases. Trial by judge “runs against the grain of tradition” in England and Wales, but has been available in Northern Ireland since the 1970s. 4. The Roskill Committee on Fraud trials (1986) HMSO at p 138 gives a very good account as to why complex fraud trials should not be heard by jury: (a) In vast majority of cases, people who hear them are persons skilled with particular knowledge and attributes. In 1984 Magistrates courts were handling 2.2 million cases, civil cases are being heard by Judge alone and Tribunals consisting of legal chairman and two lay members deal with disputes in immigration, rates, social benefits, Industrial problems and other field. These cases are all decided fairly. Therefore, it cannot be said that trial by jury is inherently more fair procedure. (b) It seems that “Society appears to have an attachment to jury trial which is emotional or sentimental rather than logical”. (c) Almost every area of the law society has accepted that just verdicts are best delivered by persons qualified by training, knowledge, experience, integrity or by combination of any of these four considerations. Therefore, complex fraud cases should be treated in a manner more akin to the way the vast majority of all other legal cases are treated today.
(d) From research conducted by the MRC Applied Psychology Unit at Cambridge (conducted on volunteers) that most jurors experience grave difficulties in following the arguments and retaining in their minds all the essential points raised in a long and complex trial. There is thus a risk of acquittal “because they have not understood the evidence or will convict him because they mistakenly think they have understood it when they have in fact done little more than applied the maxim ‘there’s no smoke without fire’”. (e) It has been found that the fear of lack of comprehension of the jury is a “major contributory factor in deciding not to proceed with a prosecution”. It is also a factor which resulted in a decision by the prosecution to opt for less serious charges than the facts warranted.
G. ARE JURIES FAIR? (MINISTRY OF JUSTICE RESEARCH SERIES 1/10, 2010) There is an important piece of research published recently by Professor Cheryl Thomas: Are Juries Fair? (Ministry of Justice Research Series 1/10, 2010). This research asks: How fair is the jury decision-making process? It explores a number of aspects of jury fairness for the first time in this country, and asks specifically: (a) Do all-White juries discriminate against Black and ethnic minority (“BME”) defendants? (b) Do jurors racially stereotype defendants? (c) Do juries at certain courts rarely convict? (d) Do juries rarely convict on certain offences? (e) Do jurors understand legal directions? (f) Do jurors know what to do about improper conduct in the jury room? (g) Are jurors aware of media coverage of their cases? (h) How is the internet affecting jury trials? The research used a multi-method approach to examine these issues: (a) Case simulation with real juries at Crown Courts (involving 797 jurors on 68 juries); (b) Large-scale analysis of all actual jury verdicts in 2006–08 (over 68,000 verdicts); (c) Post-verdict survey of jurors (668 jurors in 62 cases).
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All-White juries and BME defendants 1. A key question remained to be answered from a recent jury study: Do all-White juries discriminate against Black and minority ethnic (BME) defendants? A large number of all-White juries tried an identical case in which only the race of defendants and victims was varied. This enabled the study to determine if race actually affects jury decision-making. 2. The case simulation was conducted with 41 all-White juries at Winchester and Nottingham Crown Courts (478 jurors). It replicated an earlier study of racially mixed juries at Blackfriars Crown Court in London (27 juries with 319 jurors). Earlier research found that juries at Winchester and Nottingham will almost always be all-White. The juror catchment area for Nottingham is predominantly White but includes neighborhoods with high levels of ethnic diversity; the Winchester juror catchment area is overwhelmingly white throughout. 3. The study examined decision-making at the jury verdict level: (a) The key finding was that verdicts of all-White juries did not discriminate against BME defendants. Jury verdicts at both courts showed no tendency for all-White juries to convict a Black or Asian defendant more than a White defendant. (b) All-White juries at Winchester had almost identical verdicts for White and BME defendants, but allWhite juries at Nottingham had particular difficulty reaching a verdict involving a BME defendant or BME victim. (c) This suggests that local population dynamics may play a role in jury decision- making. 4. The study also examined the votes of all individual jurors who sat on these juries: (a) White jurors serving on racially mixed juries and on all-White juries had similar patterns of decisionmaking for White, Black and Asian defendants. But White jurors on racially mixed juries had lower conviction rates overall. (b) White jurors in a racially diverse area (Nottingham) appeared sensitive to cases involving inter-racial conflict. These jurors were significantly more likely to convict the White defendant when he was accused of assaulting a BME victim compared to a White victim. No similar trend was found with White jurors in Winchester. (c) White jurors serving on all-White juries did not racially stereotype defendants as more or less likely to commit certain offences based on race. The same result was found with both White and BME jurors serving on racially mixed juries. (d) The only other personal characteristic that appeared to affect juror decision-making was gender. Female jurors were more open to persuasion to change their vote in deliberations than male jurors. Male jurors rarely changed their mind. Jury verdicts in Crown Courts in England and Wales 2006–08
This study analyzed a large dataset of all charges in all Crown Courts in England and Wales (551,669) where outcomes occurred between 1 October 2006 and 31 March 2008. Disproportionality for BME defendants in Crown Court trials It is already known that members of BME groups are disproportionately represented among those stopped, searched, arrested, charged and in prison. This study found that: (a) BME defendants are consistently more likely than White defendants to plead not guilty to charges in all of the 12 general offence categories used in this study except one (falsification, forgery and counterfeiting). (b) BME defendants are three and half times more likely to face a jury verdict in the Crown Court relative to their representation in the general population. (c) However, jury verdicts showed only small differences based on defendant ethnicity. White and Asian defendants both had a 63% jury conviction rate; Black defendants had a 67% jury conviction rate. (d) This indicates that one stage in the criminal justice system where BME groups do not face persistent disproportionality is when a jury reaches a verdict. Appearance of jury fairness While these findings strongly suggest that racially balanced juries are not needed to ensure fair decisionmaking in jury trials with BME defendants, concerns about the appearance of fairness with all-White juries may still remain. (a) The study found that in all Crown Courts, the proportion of BME defendants is greater than the proportion of BME groups in the local population or BME jurors at each court. (b) Concerns about the appearance of jury fairness are likely to arise in courts where all-White juries try substantial numbers of BME defendants or try White defendants accused of racial crimes against BME victims. (c) To address these concerns, HMCS should ensure that court users understand how jury pools are selected and how representative they are of the locality.
Page80 Scope and effectiveness of jury trials Most charges brought against defendants in the Crown Court are not decided by a jury: (a) Only 12% of all charges are decided by jury deliberation. (b) 59% of all charges result in a guilty plea by a defendant.
(c) Of the remaining charges where a defendant pleads not guilty and therefore gives rise to a potential jury trial, 36% are decided by jury deliberation. Juries overall appear efficient and effective: (a) Once a jury is sworn it reaches a verdict by deliberation on 89% of all charges (judges direct jury verdicts on 11% of charges). (b) Once juries deliberate they reach verdicts on virtually all charges (only 0.6% of all verdicts are hung juries). (c) Juries convict on almost two-thirds (64%) of all charges presented to them. (d) Juries are rarely discharged (less than 1% of sworn juries).
H. JURY CONVICTION RATES Offence type had an impact on the probability of a jury reaching a guilty verdict. (a) Falsification, deception, drugs and theft offences are the general offence types most likely to produce a guilty jury verdict. (b) Non-fatal offences against the person are least likely to result in a jury conviction, although juries still reach guilty verdicts more often than not here (52% conviction rate). (c) Conviction rates for specific offences within general offence types can vary substantially. (i) The category of homicide-related offences has some of the lowest jury conviction rates (threatening to kill 36%, manslaughter 48%, attempted murder 47%); (ii) BUT also some of the highest jury conviction rates (death by dangerous driving 85%, murder 77%). Differences injury conviction rates for different specific offences suggest that juries try defendants on the evidence and the law. (a) Offences where the strongest direct evidence is likely to exist against a defendant appear to have the highest conviction rates (making indecent photographs of a child 89%, drugs possession with intent to supply 84%, death by dangerous driving 85%). (b) Cases where juries must be sure of the state of mind of a defendant or complainant in order to convict appear to have the lowest conviction rates (threatening to kill 36%, attempted murder 47%, GBH 48%). Misconceptions about jury verdicts in rape cases
Contrary to popular belief and previous government reports, juries actually convict more often than they acquit in rape cases (55% jury conviction rate). (a) Other serious offences (attempted murder, manslaughter, GBH) have lower jury conviction rates than rape. (b) A previous Home Office study stating that jury acquittals were more common than convictions was based on a small number of verdicts (181) in a few courts. Current findings cover all jury rape verdicts in all courts in 2006–08 (4,310). (c) Jury conviction rates for rape vary according to the gender and age of the complainant, with high conviction rates for some female complainants and low conviction rates for some male complainants. This challenges the view that juries’ failure to convict in rape cases is due to juror bias against female complainants. (d) Juries are not primarily responsible for the low conviction rate on rape allegations.
Page81 Misconceptions about jury verdicts in certain courts There are variations in jury conviction rates between Crown Courts. (a) In courts with over 1,000 jury verdicts in 2006–08, the conviction rate ranged from 69%to 53%. There were no courts with a higher jury acquittal than conviction rate, and this dispels the myth that there are courts where juries rarely convict. (b) Variations in court conviction rates could be due to differences in the types of offences presented to juries at different courts; differences in public attitudes to crime and justice in different communities; or variations in police evidence gathering or prosecution or judicial handling of jury trials. (c) It is recommended that the underlying reasons for substantial variations in jury conviction rates between Crown Courts be examined further. Multiple charges (a) The number of charges against a defendant affected the likelihood of the jury returning at least one guilty verdict. (b) The probability of a guilty jury verdict increased with the number of charges, rising steeply from 40% with one charge to 80% with five charges.
I. COMPREHENSION OF JUDICIAL DIRECTIONS
This study involved 797 jurors at three courts who all saw the same simulated trial and heard exactly the same judicial directions on the law. (a) There is not a consistent view among jurors at all courts about their ability to understand judicial directions. (b) Most jurors at Blackfriars (69%) and Winchester (68%) felt they were able to understand the directions, while most jurors at Nottingham (51%) felt the directions were difficult to understand. Jurors’ actual comprehension of the judge’s legal directions was also examined. (a) While over half of the jurors perceived the judge’s directions as easy to understand, only a minority (31%) actually understood the directions fully in the legal terms used by the judge. (b) Younger jurors were better able than older jurors to comprehend the legal instructions, with comprehension of directions on the law declining as the age of the juror increased. A written summary of the judge’s directions on the law given to jurors at the time of the judge’s oral instructions improved juror comprehension of the law: (a) The proportion of jurors who fully understood the legal questions in the case in the terms used by the judge increased from 31% to 48% with written instructions. (b) The judiciary should reconsider implementing the Auld recommendations for issuing jurors with written aide memoires on the law in all cases. (c) An assessment should also be made of how many judges already use written instructions, when and how often. (d) Further research should be conducted as a matter of priority to identify the most effective tools for increasing juror comprehension of judicial directions. Jury deliberations and impropriety This study involved 196 jurors at Winchester who had served on a jury and therefore should have been instructed by a judge on improper conduct. (a) Almost half (48%) of all jurors said they either did not know or were uncertain what to do if something improper occurred in the jury deliberating room. (b) Most of these jurors (67%) also felt they should be given more information about how to conduct deliberations. (c) An even larger majority of these jurors (82%) felt it was correct that jurors should not be allowed to speak about what happens in the deliberating room.
(d) This was only a limited exploration of these issues. The findings indicate that further research should be conducted to determine what jurors understand improper jury behavior to be; how jurors think they should deal with improper jury conduct; and what type of information jurors want about deliberations.
Page82 Media reporting of jury trials and juror use of the internet The study was conducted in three different locations (Nottingham, Winchester and London) and included 62 cases and 668 jurors. The sample included both long, high profile cases and standard cases lasting less than two weeks with little media coverage. (a) Jurors serving on high profile cases were almost seven times more likely to recall media coverage (70%) than jurors serving on standard cases (11%). (b) Most jurors who recalled media reports of their case saw or heard reports only during the time their trial was going on. This provides the first empirical evidence in this country of the “fade factor” in jury trials (the further away media reports are from a trial the more likely they are to fade from jurors’ memories). (c) But a third of jurors (35%) on high profile cases remembered pre-trial coverage. (d) In high profile cases, jurors recalled media reports of their cases from a range of media outlets, with television (66%) and national newspapers (53%) the two main sources. This contrasts with jurors’ recall of media reports in standard cases, where local newspapers accounted for almost all (77%) coverage recalled. (e) Most jurors (66%) in high profile cases who recalled media coverage either did not or could not remember it having any particular slant. Where jurors did recall any emphasis, almost all recalled it suggesting the defendant was guilty. (f) In high profile cases, 20% of jurors who recalled media reports of their case said they found it difficult to put these reports out of their mind while serving as a juror. The findings show that in high profile cases almost three-quarters of jurors will be aware of media coverage of their case. It would be helpful to know how these jurors perceive this media coverage, what particular type of pre-trial coverage jurors’ recall and what type of coverage some jurors find difficult to put out of their minds. The internet All jurors who looked for information about their case during the trial looked on the internet.
(a) More jurors said they saw information on the internet than admitted looking for it on the internet. In high profile cases 26% said they saw information on the internet compared to 12% who said they looked. In standard cases 13% said they saw information compared to 5% who said they looked. (b) In the study jurors were admitting to doing something they should have been told by the judge not to do. This may explain why more jurors said they saw reports on the internet than said they looked on the internet. (c) Among all jurors who said they looked for information on the internet, most (68%) were over 30 years old. Among jurors on high profile cases, an even higher percentage (81%) of those who looked for information on the internet were over 30. The findings raise a number of questions that should be examined further: do jurors realize they are not supposed to use the internet? How do they use the internet: do they just look for information or do they also discuss the case on social networking sites? What type of judicial instruction would be most effective in preventing jurors from looking for information about their case on the internet?
J. RECOMMENDATIONS The jury system imposes a duty on citizens to participate in the criminal justice system and to decide the most serious criminal cases in this country. It is therefore crucially important that jurors are provided with the most effective tools to carry out that responsibility. The findings on juror comprehension of the law, impropriety, internet use and jurors’ views about deliberations suggest that jurors want and need new tools to better understand the process. A concerted effort should be made by those responsible for the criminal justice system to identify the most effective means of ensuring the highest levels of juror understanding in criminal jury trials.
Page83 K. FURTHER RESEARCH This study demonstrates the large scope of jury research that can be conducted in this country within the restrictions of Section 8 of the Contempt of Court Act 1981. It also highlights the importance of not relying on findings from research in other jurisdictions, which may be misleading for understanding juries here. Despite the scale of the findings in this study, some specific further research into jury decision-making is recommended for two reasons. In some instances, the findings of this research have raised new questions about the fairness of the jury system that need to be explored. In other instances, limitations in the current research meant certain issues could not be examined in more detail in this study. The research outlined below should be conducted only with actual jurors at court and in close cooperation and consultation with HMCS and the judiciary. Section 8 of the Contempt of Court Act 1981 presents no obstacle to any of the further research recommended here.
Court differences in jury conviction rates (a) An attitude survey of serving jurors should be undertaken at a sample of Crown Courts where the jury conviction rate is substantially above and below the norm. This would be designed to determine if differences in conceptions of crime and justice among jurors in different communities explains differences in jury conviction rates at different courts. (b) A more detailed analysis of offences decided by jury verdicts in individual courts should also be undertaken to determine if this can account for variations in jury conviction rates. (c) If no differences in jurors’ attitudes or offences decided by juries in individual courts are found, then this will indicate that the explanation is likely to lie with police evidence gathering or prosecution or judicial handling of cases. Juror comprehension of legal instructions and evidence (a) Case simulation research should be undertaken to determine the most effective tools to improve jurors’ comprehension of legal rules and application of the law. (b) Surveys of Crown Court judges should be conducted to establish the extent to which judges already provide written instructions to jurors (which cases? how often? court or regional differences?). (c) Surveys or interviews with members of the legal profession should be undertaken to explore the possible implications of introducing written directions in all jury trials. (d) Case simulation research should also examine whether tools to improve juror comprehension of legal directions can also aid juror comprehension of evidence. Jury impropriety (a) Additional juror surveys should be carried out to pinpoint the extent of jurors’ misunderstanding of the impropriety rule and to assess what jurors currently perceive of as improper behavior. (b) Case simulation research should then be carried out to determine the most effective tools and procedures that can be introduced to improve jurors’ understanding of when and how to report impropriety. Media reporting (a) Further post-trial surveys with jurors on high profile cases should be conducted to establish more precisely what types of media reports were most difficult for jurors to put out of their minds, and the nature of pre-trial media reports they recall (b) Further post-trial surveys with jurors on both standard and high profile cases should be conducted to establish more precisely the ways in which jurors use the internet during trials. Is it primarily to look for information about the defendant or do they look for more general background information about the
case, information about other participants in the case, or do jurors discuss cases on social-networking sites? (c) Case simulation research should be carried out to assess the most effective form of judicial instructions to jurors on why it is important not to look for information about cases. Written juror guidelines Piloting of written juror guideline cards should be carried out in a representative sample of courts to determine how to introduce them most effectively. (a) This would involve examining what form of guidelines is most comprehensible to sworn jurors and ensures that jurors take the guidelines seriously. (b) It would also examine the most effective form of judicial instructions to accompany these guidelines. The case for further research is especially strong in relation to juror comprehension of judicial instructions, including directions on the law, impropriety and internet use. It is incumbent on those responsible for the criminal justice system to ensure that jurors are fully equipped to fulfill this crucial role, and further empirical research with jurors at court can help achieve this.
Page84 Public are satisfied with the jury system Public attitudes to juries in this country have been explored in a survey by the legal profession (Bar Council, 2002), which found that over 80% of the public trusted a jury to come to the right decision and felt trial by jury is fairer than being tried by a judge. A MORI survey (Thomas, 2007) found that both White and non-White members of the public had equally high levels of confidence in the jury system. Surveys for the Rowntree Foundation in 1999 and 2004 found that the right to trial by jury was top of the British public’s list of rights that should be enshrined in a written Bill of Rights (ICM, 2007).
Page85 Chapter10: Legal Aid CONTENTS: A. The legal aid scheme B. Reforms to legal aid: solutions for the funding problem?
C. The Middleton Review D. Criticisms of conditional fees and legal expenses insurance E. Reforms in Legal Aid Legal aid was introduced after World War II to enable people who could not otherwise afford the services of lawyers to be provided with those services by the State.
A. THE LEGAL AID SCHEME The legal aid scheme can be outlined in, leaving aside the duty of solicitors, three schemes: legal advice and assistance, civil legal aid, and criminal legal aid. In addition, assistance by way of representation (ABWOR) exists as a variant of the advice and assistance schemes. Legal Advice and Assistance (the Green Form scheme) Under this scheme it was possible to gain 2 hours of advice on any legal problem; this excluded court work. The 2-hour period could be extended. Legal advice and assistance was very widely used. At the beginning of 1990s there were a million cases a year. Assistance by way of representation ABWOR allowed representation in courts. It applied to domestic proceedings in magistrates courts, representations in relation to mental health tribunals, representations under PACE and certain child care proceedings. Civil legal aid This aid covered the work involved in bringing or defending a civil case in court. Under the Legal Aid Act 1988, a grant of legal aid depended on both a merit test and a means test. The merit test had 2 parts: (i) The first part assessed the claimants chances of success (ii) The second part was based on the criteria of a reasonable solicitor advising a reasonable client The solicitor was meant to base his or her decision on whether or not the reasonable client would spend his or her own money on the matter in hand. This test was backed up by the means test. The means test used the concepts of ‘disposable capital’ and ‘disposable income’. The former includes savings, jewellery, and the value of the house you live in. The latter involved actual income, less tax, national savings, necessities, money for dependants, etc. It created 3 categories of applicants: (i) Those on very low income, or with non disposable capital, who would be entitled to free legal aid (ii) Those who were eligible to legal aid but had to pay a contribution
(iii) Those wealthy enough to fall outside eligibility altogether.
Page86 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 Magistrates Court or a Crown Court. There was also consideration of a similar means and merit test. The merits test was basically whether it was desirable in the interests of justice that aid should be given. Considerations included the likelihood that the accused would be deprived of his or her liberty and the complexity of the case. The means test was normally carried out by court clerks and was similar to the test for civil legal aid, although the thresholds differed. The courts also had to decide whether the accused was financially eligible, except in those cases where legal aid was ‘obligatory’. There were certain circumstances where legal aid had to be granted, for example, to the accused on trial for murder in the Crown Court. A duty solicitor’s scheme set up in Magistrates Courts and police stations was non-means tested and non-contributory. The Green Form Scheme was available for criminal matters. There are also duty solicitor schemes in police stations and magistrates courts. Both of these schemes are still in place. The former is free, and was set up to cover the requirements of PACE. Duty schemes in Magistrates Courts are run by local solicitors on a rota basis. This scheme is also free, and provides legal assistance to those without representation. Summary The problems with civil legal aid were not just rising costs, but the decreasing group of people who were eligible. Many people on ‘modest incomes’ fell outside of these criteria. They were thus effectively prevented from using the courts, because they were too expensive. At a policy level the system was also seen to be inflexible, because there was no way of targeting money to cases where there as a public interest in seeing litigation. There was major concern over the failure to control the costs of the legal aid scheme. Total expenditure on legal aid was £682 million in 1990-91 and £1,477 million in 1996-97 (as per the Middleton review). Concern was also expressed at the inflexibility of the system. It was difficult to target resources on priority areas. This meant that there were areas of unmet need. If we consider criminal legal aid, we can see the development of similar problems. The problems with legal aid can also be demonstrated. In 1992-93, £507 million was spent on all forms of criminal legal aid. By 1997-98, the figure had risen to £733 million. If we compare this with inflation, we get a very real sense of the magnitude of this rise.
Inflation had risen 13%, and the criminal legal aid bill had risen 44%. 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 allowed more government control over expenditure on legal services.
Page87 B. REFORMS TO LEGAL AID: SOLUTIONS FOR THE FUNDING PROBLEM? Conditional fees in civil litigation As part of the raft of measures to reform legal aid, conditional fees have been presented as an alternative way of funding civil litigation. Conditional fees, or ‘no-win-no-fee’ arrangements, could be defines as a form of risk sharing. If the lawyer loses the case, the client does not have to pay. However, if the case is won, the lawyer can be recompensed through a success fee, which is worked out as a percentage of his or her costs. The maximum amount of success fee a lawyer was entitled to charge was set at 100% of the lawyer’s normal fee for the work undertaken. From the government’s perspective, one of the great benefits of the conditional fee system is that a lawyer is unlikely to take on a case that only has a low chance of being successful. Weaker cases that would have been funded through public legal aid will thus not be taken on by lawyers. A second argument is that conditional fees encourage lawyers to manage their work efficiently. Conditional fees were introduced slowly. They were first introduced by section 58 Courts and Legal Services Act 1990; the range of cases that they could cover was extended in 1995. Conditional fees can now apply in proceedings involving personal injury, insolvency and cases before the European Commission and the European Court of Human Rights. In 1995 the Law Society issued a code of guidance for solicitors. It suggested that a voluntary limit should be applied to the proportion of any damages that could be taken by the success fee – no more that 25%. The Law Society also arranged a scheme of insurance for clients against meeting their opponents’ costs in personal injury cases. Legal expenses insurance It is important to understand the importance of legal expenses insurance. This can be usefully analyzed in 2 categories: Before the Event Insurance (BEI) and After the Event Insurance (AEI). The former is a general form of insurance that covers the insured against legal costs that they may incur. BEI is most often part of a broader insurance policy, for instance, motor insurance, but, BEI is also available as a free-standing package. Compared to AEI, BEI is cheap and flexible. AEI covers the insured person against the risks of losing a court case. It works alongside a conditional fee arrangement, and provides cover if the insured person is unsuccessful in litigation and has to pay the
costs of his or her own solicitor. The problem with this form of insurance is that the premiums can be high, and, compared with BEI it is more complex to administer; there is also a problem is the costs exceed the insured risk.
C. THE MIDDLETON REVIEW While conditional fees became part of the way in which legal services were funded, the government continued to review the operation of the legal aid system. The Middleton review (1997) stressed that reforms had to identify how resources could be used in an efficient and accountable manner. The key solution proposed by the Middleton review was to allow a central body to become a more active player in the delivery of legal services. In other words, it should not operate in the way that the Legal Aid Board had, which was to assess the work and pay the bills of legal aid lawyers. A more proactive role would allow the central body to interpose quality standards, and to ensure that the work was being done for the best possible price. If this approach was to work, then contracts would have to cover blocks of work, as this would enable the body to observe general patterns, and to ensure quality and cost over a particular area of work. Central to the Middleton idea of contracting: This is a fundamental change from the existing legal aid scheme, under which any lawyer can take a case and submit a bill to the Legal Aid Board for payment. In future, lawyers and other providers will only be able to work under the scheme when they have a contract with, or a grant from, the LSC. The government has already announced that all advice and assistance, and representation in family litigation, will be provided under contract from the end of 1999. Middleton argued that there were a number of reasons why contracting should drive down the prices of legal aid work. First of all, contracts would have less bureaucracy than case-by-case consideration, if solicitor’s firms were to be made to compete to win the contracts, then the government could be sure that they were obtaining the best value for money. Moreover, this mechanism would allow for greater sensitivity to regional variations in price and demand than a system where these calculations would have to be determined centrally. Thirdly, the contracts themselves would contain incentives to do certain kinds of work, and also allow some of the risks of litigation to be borne by the solicitor’s firms, rather than their clients.
Page88 D. CRITICISMS OF CONDITIONAL FEES AND LEGAL EXPENSES INSURANCE The Legal Aid Action Group has been critical of the way in which conditional fees have been operated. It has drawn attention to problems with the lack of regulation of the companies who manage the claims.
Research suggest that 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. It has been observed that the main contribution of referral agents is one of reach, in that they are able to advertise widely and encourage a wider number of claimants to enter into Conditional Fee Agreements (CFA). LAG has argued that the insurance companies are driven by the need to make profits, rather than by the interests of their clients. Moreover, the failure of 2 major insurance companies (Claims Direct and the Accident Group) suggests that there is a need for the government to intervene in this area. However, this does not necessarily suggest that any form of legal insurance is unacceptable. Lessons can be drawn from the Swedish experience with Legal Expense Insurance (LEI). In 1997, reforms cut back the coverage of legal aid in Sweden. LEI had been part of household insurance policies since the 1960s, and thus the withdrawal of state-funded aid was felt acutely. Present figures show that 97% of the country have this form of insurance, but there are disadvantaged groups who do not. Another advantage of linking LEI with household insurance is that it makes for a wider risk base. LEI covers most kinds of cases, although certain areas of work are excluded. Advice and Assistance is also excluded, but can be obtained on the payment of a flat fee. LEI holders pay a certain amount ‘up front’ and a certain proportion of the costs of the case. There are problems with this system: for instance it has been suggested that it encourages litigation rather than settlement. There is also a need for increased overall regulation of the system and the continued provision of a ‘legal aid safety net’. Research conducted in the UK shows that there is a high level of satisfaction with the advice and service obtained under LEI. Although there are also problems with the administration and publicity of the system, LAG suggests that: LEI might naturally overtake CFAs as the preferred means of funding for many civil claims in this jurisdiction. Funding of legal services (a) Aims and objectives: (i) To understand the rationale underlying the need for publicly funded help; (ii) To appreciate the problem of access to justice; (iii) The government’s role in providing for a legal aid scheme; (iv) The relevant problems associated with publicly funded legal aid; (v) The developments in legal aid reform; Examination Focus: Essentially questions revolve around the reforms introduced by the Government in the attempt to remedy the unmet legal need problem particularly in relation to whether legal aid now does ensure
access to justice. Hence in the reform-type questions such as this there is a need to evaluate and analysis the new existing legal aid scheme to assess whether these changes and reforms actually achieve its initial intended purposes. 2009, Zone A, Question 7 ‘Although legal aid policy is driven by the need to control costs and achieve value for money, there are also ways in which it is influenced by concepts of access to justice and welfare provisions as well as by arguments drawn from both European human rights law and EU law.’ Discuss. 2009, Zone B, Question 7 ‘The Legal Aid system in England and Wales is neither in decline nor crisis.’ Discuss. ALSO
Page89 ‘The changes made to the Legal Aid system as a result of the Access to Justice Act 1999 and the Carter Reforms will ensure that legal aid providers offer efficient and high quality services to clients. These are the principal objectives of the legal aid system. Discuss. 2008, Zone A, Question 4 ‘The steady increase in spending on legal aid in recent years is unsustainable. The overall budget has increased by £500 million since 1997 alone to £2 billion last year, and the steep rise in criminal legal aid is putting severe pressure on what is available to fund civil and family legal aid. (Carter Review) What consequences does Carter draw from this and do you agree with his recommendations? 2008, Zone B, Question 4 ‘It is clear to us that the fairest and most sensible way forward *for legal aid+ is to move towards a market-based approach which rewards efficient firms providing a quality service at the best value to the tax payer. (The Carter Review) 2007, Zone A, Question 7 How far, if at all, did the reforms of legal aid in the Access to Justice Act 1999 improve access to justice? 2007, Zone B, Question 8 ‘Arguments that there is a human right to legal aid are not helpful. Discuss. 2006, Zone A, Question 5
‘It is difficult to judge the success of reforms in legal aid provision as we lack agreement on the aims and objectives of a legal aid system. Discuss. 2006, Zone B, Question 2 ‘Reforms in legal aid provision can be understood only in a political context. The essential question underlying reform is whether efficiency and value for money should be predominant?’ Discuss. 2005, Zone A, Question 5 ‘The 1999 changes to legal aid system have not increased citizens access to justice. Justice was sacrificed to cost cutting.’ Discuss. 2005, Zone B, Question 4(a) ‘The debate about the funding and delivery of legal services must acknowledge the profound tensions in the values that inform this area of policy.’ Discuss. 2004, Zone A, Question 2 ‘The changes to the Legal Aid system introduced by the Access to Justice Act 1999 have reduced, rather than enhanced, access to justice.’ Discuss. 2004, Zone B, Question 3 What is the desirable balance between the responsibility of the state and that of the individual in funding legal services? Is the current balance in England and Wales appropriate? 2003, Zone A, Question 4 ‘Recent reforms in legal aid destroy the right of access to justice for all.’ Discuss. 2003, Zone B, Question 7(b) ‘Recent reforms to legal aid undercut the principle of equal access to justice for all. Discuss. 2002, Zone A, Question 5 ‘Recent reforms in legal aid are motivated by financial concerns rather than the desire to ensure access to justice for all.’ Discuss.
Page90 2002, Zone B, Question 5 Does the current legal aid system ensure ‘equal access to justice for all’?
2001, Zone A & B, Question 4 Evaluate the advantages and disadvantages of the recent reforms to legal aid system in England and Wales. 2000, Zone A, Question 3 What, in your view, are the advantages and disadvantages of the Lord Chancellor’s package of reforms to the legal aid system? 2000, Zone B, Question 3 To what extent, if any, do you believe that the Lord Chancellor’s package of reforms to the Legal Aid system will improve access to justice?
E. REFORMS IN LEGAL AID 1. Introduction Reforms in legal aid provision can be understood only in a political context. Any legal aid reform must be considered within the broader context of access to justice and human rights. Legal aid reform and policy cannot be viewed purely as an exercise in economics; whilst it is true that legal aid policy is aimed towards controlling costs and achieving value for money but it is also influenced by concepts of access to justice and arguments drawn from both European human rights law and those elements of EU law that are congruent. It must be remembered however, that legal aid provisions remain within the province of the nation state but any assessment of legal aid must nevertheless consider the influence of these bodies of law. : What does ‘access to justice’ mean? Simply, the term denotes ‘equality of access to law and legal services’ and it is a doctrine that affirms that the courts should allow citizens to protect their rights against powerful bodies which is in essence what ‘democratic politics’ should reflect; the responsibility of the state becomes paramount here to ensure that access to justice is reflected in the vision of law and practice. The history of legal aid. According to Carol Harlow, in ‘Access to justice as a human right’ (1999) she states that: Legal aid is...an expensive, open ended, social service, whose demand led budgetary needs are hard to forecast and create a steady drain on government funds. To policy makers, legal aid may seem a second order need... certainly secondary to the right of minimum existence which underlies social assistance; or the highly prized ‘right’ to health care which heads the popular list of human rights in the UK; less productive than services such as education or housing.
From the above, it is clear that this has been the fundamental dilemma of legal aid from the perspective of the government. Since 1945 legal aid policy has been driven by the need to control the costs of a potentially open ended service and to ensure that the other areas of the welfare state receive their fair share of government funds. It is this problem of the welfare state being supported by central government which has caused fierce debates and continue to do so today in terms of how financial support is to be provided. Arguments as to why legal aid proved to be prohibitively expensive are necessarily contentious here when determining the proper boundaries and ambit of legal aid provisions. Access to justice, it must be remembered is part of a broader commitment to equality of opportunity and legal aid reform is not purely motivated by cost and efficiency, whilst these value provide the dominant values. The real debate would be over the extent to which social reform, and hence the reform of legal aid, is compatible with the reliance on market mechanisms. (known and the ‘market forces’ philosophy) By ‘market forces’ what this means is that in order to attain maximum output from the legal system and its available resources, efficiency requires that unjustified restrictive practices be removed and greater competition encouraged. This philosophy of the government is aimed towards providing better value for the taxpayers money and a better service for people who use the scheme since greater efficiency is inevitable when lawyers are required to compete for work.
Page91 Access to justice and the Carter Review The broader political patterns on legal aid provision would be to examine the Carter Review which in essence demonstrates that there has been an increase in legal aid expenditure without any concomitant improvement of efficiency. This was highlighted in 1997 by the Middleton Review as well. The Carter Review opens with some broader statements of the problem, and the principles that will be used to resolve it: The steady increase in spending on legal aid in recent years is unsustainable. The overall budget has increased by £500 million since 1997 alone to £2 billion last year, and the steep rise in criminal legal aid is putting severe pressure on what is available to fund civil and family legal aid. Prior to Middleton, there has been ad hoc attempts to achieve reform. The legal aid budget has been ‘capped’ and standard fees introduced. In the area of civil legal aid, the Courts and Legal Services Act 1990 introduced conditional fee arrangement in an attempt to displace the costs of funding of legal aid onto the insurance industry and litigants themselves. Middleton’s recommendations also moved in the direction of centralization. The review’s key proposal was the need for a central body to fund and coordinate the delivery of legal aid. The body would replace
the Legal Aid Board, which played an essentially passive role. If the central body itself purchased the services of lawyers, then, the argument was that is would be a manageable cost and there would be greater control over the work that was being funded. Further, because the central body controlled funding, there would be an element of competition introduced into the system which means that the lawyers would have to compete with each other to provide the best value for money. These ideas fed into the Access to Justice Act 1999. 2. The main reforms introduced by the Access to Justice Act 1999 The Access to Justice Act 1999 was designed to enable implementation of a reformed scheme to meet the government’s objective to promote and develop legal services that can be delivered with a controlled budget and targeted according to need. Section 2 AJA created the Legal Services Commission (LSC), which replaces the former Legal Aid Board and the LSC was charged with establishing, maintaining and developing a Community Legal Service and a Criminal Defence Service (CDS). The LSC will therefore coordinate the various sources of civil legal aid services provisions and funding and criminal legal aid. Funding decisions by the LSC were to be based on two main principles: (i) Planning; (ii) Contracting; and (iii) Funding By planning this would allow a sensitive allocation of resources to match targeted needs; Community Legal Service fund will be used to secure provisions of appropriate legal services within the resources made available and according to priorities set out by the Lord Chancellor and regional and local assessment of need. It would also extend the availability of alternative solutions like arbitration and mediation. Planning would also mean co-operation with local funders and interested bodies to develop local, regional and national plans to match delivery of legal services to identified needs and priorities. By contracting what this means is that quality control of legal services will be maintained by a system whereby only firms with contracts given by the LSC will be allowed to do legal aid work. This would enable the imposition of quality standards and the achievement of value for money. By Section 13(2) AJA 1999 this allows commission to secure advice and assistance through entering into contracts with legal firms. From January 2000, only firms with the Community Legal Services quality mark given when contracted will be able to do civil legal aid work. The CDS scheme replaced the old criminal legal aid system. It now covers representation in court and advice and assistance for suspects being questioned by the police. By funding this means that the basis for funding legal services will be done through flexible tests instead of the former one track means and merits test. Under the new funding code, there will be a different test for different types of cases. Where the claim is for quantifiable damages, the funding code will specify the percentage bands of success and minimum cost/benefit ratios.
Civil legal aid will only be allowed for family, housing, immigration and medical negligence cases. Legal aid will no longer be available for personal injury cases, disputes about inheritance and intestacy, trust and company matters, land and boundary disputes and cases pursued in the course of business. All such matters will now be funded under conditional fee arrangements.
Page92 The 1999 changes to legal aid system have not increased citizens access to justice. ‘Justice was sacrificed to cost cutting.’ The Carter Review draws attention to the need to continue reforming legal aid: It is clear to us that the fairest and most sensible way forward [for legal aid] is to move towards a market-based approach which rewards efficient firms providing a quality service at the best value to the tax payer. We recognize however that to secure a thriving and sustainable supply base, change needs to be implemented in a phased way over a three year period. Carter’s fundamental proposal aimed towards enhancing a system based on competitive tendering for block contracts of work rather than the current system which was based on fees being assessed and paid at hourly rates. The objectives clearly define how best access to justice is to be achieved and how to deliver greater value for money. The review argued that costs increased because of systemic weaknesses in the way legal aid services are procured and therefore inefficiencies in the way those services are delivered. In other words, legal aid policy attempts to square efficiency and access to justice within a model of the delivery of public services largely determined by the politics of the free market. After Carter, funding legal services will no longer be based on payments of hourly rates, but on the basis of ‘best value tendering’ – best value being understood as a relationship of ‘quality, capacity and price’. 3. The recent developments today Jackson Review of costs and funding of litigation (UK) In 2008 the Master of the Rolls appointed Lord Justice Jackson to undertake a fundamental review of costs and funding of civil litigation in England and Wales. It is widely regarded that the reforms of civil procedure rules undertaken ten years ago in the UK following the Woolf Reports (Woolf Reforms, leading to the adoption of the new Civil Procedure Rules) did not achieve one of their fundamental objectives: decreasing the costs of litigation. Thus, the Jackson review is meant to assess the position and make recommendations. Jackson LJ attacks Access to Justice Act with proposals to reverse ATE provisions and cap success fees. Lord Justice Jackson’s review into civil litigation costs has reignited the debate on how claimants can get to the courts without incurring huge legal bills.
Jackson LJ made a series of recommendations, some of which will need the support of primary legislation, which will effectively overhaul how litigation for small and medium claims operates. The report proposes that civil litigation success fees should be capped at 25 per cent of damages and those losers will no longer be liable for after-the-event (ATE) premiums. At the same time the damages should increase by 10 percent. This has sent shockwaves through the profession, particularly for those working in the personal injury (PI) sector. The Review is very comprehensive – it includes all levels of litigation, and all courts – also specialist courts. The following are the objectives and the terms of reference of the Review.
Page93 Objective To carry out an independent review of the rules and principles governing the costs of civil litigation and to make recommendations in order to promote access to justice at proportionate cost.” Terms of reference In conducting the review Lord Justice Jackson will: (i) Establish how present costs rules operate and how they impact on the behaviour of both parties and lawyers. (ii) Establish the effect case management procedures have on costs and consider whether changes in process and/or procedure could bring about more proportionate costs. (iii) Have regard to previous and current research into costs and funding issues; for example any further Government research into Conditional Fee Agreements - ‘No win, No fee’, following the scoping study. (iv) Seek the views of judges, practitioners, Government, court users and other interested parties through both informal consultation and a series of public seminars. (v) Compare the costs regime for England and Wales with those operating in other jurisdictions. (vi) Prepare a report setting out recommendations with supporting evidence by 31 December 2009.” The purpose of the Jackson report is summarised in its foreword: “In some areas of civil litigation costs are disproportionate and impede access to justice. I therefore propose a coherent package of interlinking reforms, designed to control costs and promote access to justice.”
The report covers civil litigation in England and Wales. (Note: the civil justice systems in Northern Ireland and in Scotland are different and separate from the system in England and Wales. Jackson’s report may have influence on these two other systems, but it should also be noted that a separate report has recently been published by Lord Gill on the Scottish system.) The report has been broadly seen as favourable to the defendant, and from EJF Members’ viewpoint, there are significant improvements in the final report compared to the May 2009 preliminary report. In particular, cost exposure will greatly reduce if the recommendation is followed that the winning party can no longer recover the costs of ATE insurance or the success element of any attorney fees. The normal rule of two-way cost shifting is confirmed as the norm in collective litigation (except personal injury cases), whereas the preliminary report recommended one-way cost shifting in all collective litigation. It is also of importance that the report emphasises that ADR should be much more widely used and that both judges and solicitors should receive training in this respect. However, there are also recommendations that are of concern to EJF Members. These include an increase in damages paid in personal injury (PI) cases (as a quid pro quo for the plaintiffs having to pay the costs of ATE insurance and success fees out of their damages); a greater role for contingency fees; and one-way cost shifting in PI cases. The following summarises the main points of the Report, and the language of the following summary assumes that the report’s recommendations are implemented: of course, it is not known at this stage whether this will be the case. The Consultation Document ‘Proposals for the Reform of Legal Aid in England and Wales’ outlines proposals which aim radically to reform the system and encourage people to take advantage of the most appropriate sources of help, advice or routes to resolution. If implemented in their entirety, it is estimated that the proposals will achieve savings of around £350 million in 2014-15, making a significant contribution to the Department’s commitment to reduce its overall spend by £2 billion by 2014-2015.
Page94 Every aspect of legal aid has been considered for reform. Proposals include: (i) Legal aid will still routinely be available in civil and family cases where people’s life or liberty is at stake, or where they are at risk of serious physical harm, or immediate loss of their home. For example, legal aid will be retained for asylum cases, for debt and housing matters where someone’s home is at immediate risk, and for mental health cases. It will still be provided where people face intervention from the state in their family affairs which may result in their children being taken into care, and cases involving domestic violence or forced marriage. It is also proposed to retain legal aid for cases where people seek to hold the state to account by judicial review, for some cases involving discrimination which are currently in scope, and for legal assistance to bereaved families in inquests, including deaths of active service personnel.
(ii) Retaining legal aid for those criminal cases where it is currently available, in order to ensure fair trials for those accused of more serious criminal offences can access the representation required to provide a fair trial. (iii) Clear choices are proposed in order to introduce a more targeted scheme which directs limited resources to serious issues in civil and family cases which have sufficient priority to justify the use of public funds, subject to people’s means and the merits of the case. Some types of cases will no longer routinely qualify for legal aid funding. (iv) This will include private family law cases, for example, divorce and child contact, where long-drawn out and acrimonious cases going through the courts can often have a negative impact on the well-being of any children and not necessarily achieve the most effective result. Funding for cases where domestic violence is involved will, however, continue to receive funding. And funding will also continue to be provided for mediation as a better alternative to family disputes going to court in most cases. (v) Other civil cases which will no longer routinely qualify for legal aid funding include clinical negligence, where in many cases alternative sources of funding are available, such as “no win no fee” arrangements (Conditional Fee Agreements). Other issues proposed for removal from the scope of the legal aid scheme include debt, education, employment, housing, immigration and welfare benefits (except where there is a risk to anyone’s safety or liberty or a risk of homelessness), where in many cases the issues at stake are not necessarily of a legal nature but require other forms of expert advice to resolve. (vi) Legal aid funding may still exceptionally be provided for individual cases through a new funding scheme for excluded cases, generally only where it is necessary to meet our domestic and international legal obligations, for example, in a particularly complex clinical negligence case involving a disabled claimant who cannot represent themselves where access to the court could not otherwise be secured. (vii) Telephone services will be extended to help people find the easiest and most effective ways to resolve problems. (viii) Changes will be made to means testing for non-criminal legal aid. These seek to ensure that those who, on the basis of their disposable capital or income, can pay or contribute towards the costs of their case should be asked to do so. The proposals include ensuring that all civil legal aid applicants undergo an assessment of their available capital, including those on benefits. Greater account will also be taken in future of equity in people’s homes when assessing their capital means. A minimum £100 contribution to their legal costs will be introduced for all successful applicants with £1,000 or more disposable capital, and higher contributions will be expected from those who currently contribute to their legal fees. (ix) Changes will be made to the way that lawyers are paid in criminal cases in order to promote an efficient system of justice and to ensure that the taxpayer is receiving the best possible value for money. The intention is to move towards a competitive market to replace the current system of administratively set fee rates. In the meantime, there is a series of proposals designed to promote swift and efficient justice as well as to achieve savings. These include proposals to pay the same fee in respect of a guilty
plea in the Crown Court regardless of the stage at which the plea is entered. In Crown Court cases that could realistically have been dealt with in the magistrates’ courts, it is proposed to pay a single fixed fee for a guilty plea based on fee rates in the magistrates’ court. This complements other reforms to the justice system designed to encourage cases to be brought quickly and efficiently to justice, so sparing the victim the ordeal of giving evidence in court unnecessarily, and the justice system significant but avoidable costs. (x) To contain the growth in costs of the most expensive (Very High Cost Criminal Cases – VHCCCs) we propose to bring the arrangements for solicitors in VHCCCs into line with those the last Government introduced for advocates. This will mean that more of these cases will be paid within a graduated fee scheme where costs are more easily controlled. (xi) In order to strike a better balance between using tax payers money efficiently, and ensuring that people can access legal aided services where necessary, fees paid in civil and family cases will be reduced by 10% across the board. It is also proposed to extend lower legal aid ‘risk rates’ in civil cases where costs are likely to be paid by the opponent, pending the introduction of competition once any proposed changes to the scope of civil and family legal aid have bedded in. Similar levels of reductions are envisaged in experts’ fees to exert greater control over costs. (xii) The paper also consults on suggestions for alternative sources of funding for the legal aid fund, to help supplement existing funding arrangements. These include making use of the higher rates of interest generated by money invested in a new pooled account where solicitors would hold their clients’ money, and recovering a proportion of legal aid funds in cases where a successful claim for damages has been made. (xiii) Views are also sought on how to make the administration of legal aid more efficient and less bureaucratic for solicitors and barristers doing legal aid work.
Page95 4. Main Recommendations of the Report 1. Neither success fees nor ATE insurance premiums should be recoverable from unsuccessful opponents. Clients would still be able to enter into success fees, but the cost will be borne by the client and not the opponent. 2. As a quid pro quo, damages awarded in personal injury cases for pain suffering and loss of amenity would be increased by 10%, and the maximum amount that lawyers could take under a success fee would be limited to 25%. Note that damages for pain, suffering and amenity are not the whole damages normally awarded. Indeed, such damages are normally a relatively small proportion of the total damages awarded.
3. The normal two-way costs shifting should apply in collective litigation (except PI litigation). However, there should be further consultation on categories of litigation where “qualified one-way costs shifting” should be considered – i.e. the claimant would not be liable to pay a successful defendant’s cost, but a defendant would be liable to pay a successful plaintiff’s costs. 4. Contingency fees would be allowed provided an unsuccessful party would only pay the equivalent of a normal fee, and provided that the terms of contingency fee arrangements were regulated to safeguard the interests of clients. 5. Further consideration should be given to contingency legal aid funds (CLAFs) and supplementary legal aid funds (SLAs). 6. Concern is expressed about the extent of disclosure in civil litigation. Training should be given about the efficient conduct of e-disclosure. Changes to disclosure are recommended in large commercial cases, but not in personal injury cases. 7. There should be stronger case management, e.g.: judges with relevant experience of the type of litigation; standardising case management directions; cases remaining with the same judge throughout. 8. To further encourage settlement, the defendant will be under greater pressure to accept settlement offers by the claimant, because if he fails to beat the offer in a final judgement, his opponent’s damages would be enhanced by 10%. 9. There should be greater use of ADR. Jackson Review of Civil Litigation Costs: Final Report Lord Justice Jackson has published the Final report of his Review of Civil Litigation Costs. It is bad news for personal injury claimants, for unions and their members. It is good news for the insurers and their shareholders. The insurers have got much of what they wanted from the review. The review runs to 584 pages and we will continue to study the detail. This is intended to be a first summary of the key areas of the report of direct importance to trade unions. If the report’s recommendations were to be accepted by this or a future government (and there is heavy pressure from the judges and the insurers to see that done) it would impact on all aspects of union legal services and mean in practice: 1. The end of being able to take out After the Event (ATE) insurance or for unions to self insure against losing a case. This will only be partly offset by in most cases not having to pay defendants’ costs where cases are lost. 2. The £millions paid out by ATE insurers for disbursements in unsuccessful cases will no longer be available – Jackson expects injury victims to pick this up.
3. No success fee from insurers to provide a fund for unsuccessful cases – this alone will cut by at least 20% the costs paid by insurers in successful workplace injury cases and undermine the funding of union legal services. 4. A return to the old days of any success fee (to be capped at 25% of damages) coming out of the claimant’s damages. 5. A ban on referral fees whether paid in cash or by discounted or free legal services. 6. Fixed costs for fast track personal injury claims – designed to reduce the costs in well over 80% of union cases. 7. A green light for contingency fees (where the lawyer takes a part of any compensation won and which caused havoc in equal pay cases). 8. A proposal to increase general damages by 10% is put forward to offset the deductions from damages that these changes will bring. But 10% is nowhere near enough to make up for the financial hole created by the proposals.
Page96 The only ‘good news’ for claimants and trade union legal services is a decision not to increase the small claims limit. But that is only a temporary reprieve as the small claims limit will be reviewed again (meaning it is likely then to be increased substantially) at the end of 2010 if it is not considered that the reforms on fixed costs, success fees and the new claims process for road traffic accidents have been satisfactory by then. If those reforms are considered satisfactory then, when justified by inflation, the limit will still go up to £1,500 to reflect inflation since 1999 when the small claims limit was last increased. The furore about no win no fee lawyers taking money from compensation appears to have been forgotten. Jackson’s proposals make deductions from damages the norm and would mean a potential take from an injured person’s compensation of up to 50% while insurers pocket what they are currently paying out. Taking the issues in turn: Small claims (Ch 18) No costs are payable by insurers in small claims and any increase would seriously damage union legal services. It is good news, therefore, that there is no proposal to increase the small claims limit for personal injury claims, for now. However, the report says there is “considerable force in the arguments” for raising the limits.
The reprieve is made contingent on Jackson finding that the other proposed reforms “bed in satisfactorily”. by the end of 2010. The report states that the priority is to fix all costs in the fast track and to establish an efficient and fair process for handling personal injury claims. If those reforms don’t “bed in satisfactorily” then the small claims limit will be reviewed. This is clearly an implied threat to increase the limit substantially. In any event, when justified by inflation, it is proposed the limit should go up to £1,500 to reflect inflation since 1999 (when the small claims limit was last increased).
Fixed costs (Ch 15) Fixed costs for all fast track personal injury claims. Fast track cases are all those up to £25,000. They represent up to 80% of union backed claims. The report rejects calls for certain cases, including employers liability disease cases, to be excluded from the fixed costs regime. Jackson makes no bones about the fact that the aim of fixed costs is a reduction in costs. All the arguments against fixed costs have been rejected. The fact that the miners scheme cases show that most lawyers on fixed costs do the minimum work possible and undersettle has been ignored. Unscrupulous lawyers will either cut corners by doing less work or reduce the qualification and supervision of those who do the work. This will be a windfall for employers and their insurers at the expense of union legal services and claimants. There is also a suggestion that fixed costs in the multi-track (cases above £25,000) be reviewed after fixed costs in the fast track have bedded down.
Success fees, union self-insurance and ATE premiums (Ch 9-10) This is potentially the most damaging part of the report and will leave a gaping financial hole in the funding of union legal services. Success fees and After the Event (ATE) insurance will no longer be recoverable from defendants in successful cases. It follows from this and the proposals on costs shifting (see below) that union self insurance would also go. The clear message is that success fees (which pay for unsuccessful cases) should be deducted from the claimant’s damages. This means the end of the fund for lost cases, unsuccessful cases and, in self
insurance schemes, unrecovered disbursements. Jackson expects this to come from claimants’ damages (up to a maximum of 25% of that compensation). As a sweetener for this the report proposes a 10% increase in that part of damages payable for pain, suffering and loss of amenity (general damages). As general damages are only part of a claim (loss of earnings can be a substantial part) against a real cut of up to 25% this will mean an increase of much less than 10% overall. Ending the requirement for insurers to pay success fees will slash by a fifth at least the costs paid by insurers in workplace injury cases and undermine the funding of union legal services. ATE insurance and union self insurance to pay disbursements and the other side’s costs in unsuccessful cases would end. The proposal to not pay defendants’ costs in (most) cases that are lost (costs shifting – see below) would only partially offset the impact of this leaving the considerable problem of funding the £millions in disbursements in those unsuccessful cases.
Page97 Costs shifting (Ch 19) The report recommends a regime of qualified one way costs shifting. By “qualified” it means that subject to the qualifications the claimant will not be required to pay the defendant’s costs if the claim is unsuccessful, but the defendant will be required to pay the claimant’s costs if they are successful. The qualifications to this are that unreasonable (or otherwise unjustified) behaviour by either side may lead to a different costs order. This includes where the claimant recovers less than an insurers Part 36 offer – the assumption is that the opponent’s costs will then be paid out of the claimant’s damages. Referral fees (Ch 20) Referral fees are to be banned. They are widely defined to include all free and discount services and this has the potential to seriously undermine union legal services. If this proposal is not accepted then there is an alternative proposal for referral fees to be capped at £200. Electronic assessment of damages (Ch 21) Jackson’s preliminary report was enthusiastic about electronic (software based) assessment of damages. However he now acknowledges that computers cannot replace judges and that calibration should accord as nearly as possible with the awards of general damages that would be made by the courts. He recommends that a working group be set up to establish a uniform calibration for all software systems used in the assessment of damages.
This is a welcome step back from the preliminary report’s passion for the insurance biased software tools pushed by the Association of British Insurers and the insurance industry generally. Before the Event (BTE) insurance (Ch 8) BTE has been used by insurers to attack union legal services by profiting from claims against themselves and taking control of the market to the exclusion of union arrangements. Jackson remains in favour of expanding BTE and recommends encouragement of greater take by small businesses and householders. The ban on referral fees will have an impact on BTE although the extent of this is an unknown. The report recommends that where a claimant’s BTE funds their claim, the claimant should have the right to use a solicitor of their choice. This at least is welcome. Contingency fees (Ch 12) Jackson gives a green light for contingency fees (where the lawyer takes a part of any compensation won and which caused havoc in equal pay cases). He favours a model where the losing party pays costs in the normal way and where the contingency fees exceeds this, that is borne by the successful litigant. The report supports the MoJ’s current proposals for regulating contingency fees as a sufficient safeguard. Indemnity principle (Ch 5) The recommendation is that this be removed as an issue. If implemented, this is welcome as it will remove many of the technical challenges brought by insurers trying to avoid paying costs. But there have been many recommendations to abolish the indemnity principle and none have ever been implemented.
Page98 Third party capture This growing industry which ‘skims’ injured people off as soon as they approach their insurers and passes them to a captive law firm merits a mention but, unsurprisingly in an insurance friendly response, merits no recommendations. It is effectively glossed over in the section on BTE. Collective actions (Ch 33) Jackson appears to support finding ways of funding collective and representative actions. He says that the starting point or default position in collective actions should be (a) in personal injury actions, qualified one way costs shifting, i.e. the same as for other personal injury cases and (b) in all other actions, retention of the current system.
Part 36 (Ch 41) The report’s recommendations may be of some limited comfort to injured members. Where a defendant rejects a member’s confidential offer, but the member is awarded more than that offer at trial, it is proposed that the compensation is increased by 10%. 5. Analysis of Outcome and Responses to these Recommendations European Justice Forum (EJF’s) view is that assessing costs of litigation without looking at wider, contextual issues (both the general framework of civil procedure, but also ADR mechanisms and other mechanisms for providing civil justice) is not capable of uncovering the true position Sir Laddie argues: “Any civil lawyer will identify why our proceedings cost so much; lengthy cross-examination and oral argument and, above all else, disclosure of documents.” We were therefore pleased to see the emphasis placed on ADR by Lord Justice Jackson and his recommendation that it be understood and used more widely. EJF Response to Lord Justice Jackson’s Report: In February 2010, EJF submitted its response to the Report both to Lord Justice Jackson and to the Ministry of Justice. We broadly welcomed the response and the reductions in costs that it should bring. However, we also argued for: (i) an extension of circumstances in which personal injury litigation should remain exposed to the loser pays rule (ii) the loser pays rule to apply in all collective litigation (iii) the continued prohibition of US-style contingency fees (where by a lawyer takes part of any damages awarded) (iv) tighter control of third party process funding What others are doing The Jackson Costs Review has triggered a very lively debate in the UK industry, legal, and academic circles: especially as regards any form of a fixed costs scheme which lord Jackson may well be considering at present. Oxford Conference on Costs of Litigation The Centre for Socio-Legal Studies and the Institute of European and Comparative Law at the University of Oxford held an important International Conference on Litigation Costs and Funding in July 2009.
The Conference looked at international data in 30 jurisdictions on: (i) How much does litigation cost? (ii) How can claimants fund claims? (iii) Who funds claims? (iv) Who ends up paying, and how much? These are questions of fundamental importance for civil justice systems. Lord Justice Jackson attended the conference and the data contributed to his report.
Page99 6. The European Union – Legal Aid Directive As part of the policy of judicial cooperation in civil and commercial matters the EU is involved in the issues of costs and funding of litigation. Also the latest initiatives from DG COMP (Green Paper and White Paper on damages for breach of EC antitrust law) and DG SANCO (Green Paper on collective redress) mention costs of actions as an important issue to be considered. Formal EU legislation in the area is very limited. So far, only a Directive on Legal Aid has been adopted: Directive 2002/8/EC of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid in such disputes. Minimum standards to ensure an adequate level of legal aid in cross-border cases were mentioned as one of the priorities of the Tampere Summit in 1999. In February 2000, the Commission adopted a Green Paper on ‘Legal aid in civil matters: the problems confronting the cross-border litigant.’ The Council adopted the directive in January 2003. It should have been transposed into national law not later than 30 November 2004. The purpose of this directive is to improve access to justice by establishing minimum common rules relating to legal aid in cross-border disputes. It shall apply to civil and commercial matters, but only if the party applying for legal aid is domiciled or habitually resident in a Member State other than the Member State where the court is sitting or where the decision is to be enforced. Within the context of this directive, Member States shall grant, under certain conditions, legal aid to persons who are partly or totally unable to meet the costs of proceedings as a result of their economic situation, in order to ensure their effective access to justice. Moreover, the directive contains provisions which organise judicial co-operation between Member States to simplify and accelerate the transmission of legal aid applications. To this end, two standard forms have been established by the Commission.
7. Other observations from commentators Irwin Mitchell head of PI Andrew Tucker insists that access to justice for PI claimants has never been better, adding that if Jackson LJ’s proposals were implemented this would no longer be the case, as claimants would have to contribute to their own costs. “In cases involving the most serious injuries, claimants may have to contribute thousands of pounds. This cannot be just or fair,” he says. “In many cases compensation is carefully calculated to pay for a lifetime of future care and is contrary to the current intention of Parliament in setting up the ‘no win, no fee’ system.” When presenting his report at the Royal Courts of Justice last week (14 January), Jackson LJ said legal costs had been pushed up as a direct result of the Access to Justice Act 1999. Jackson LJ said that, thanks to the act, which made success fees and ATE premiums recoverable, a “costs war” has broken out between claimant and defendant lawyers, spawning unprecedented levels of satellite litigation and adding even more layers of costs. This needs to be reversed to improve access to justice for all, Jackson LJ argued, and the most instant way of doing this is by amending the structure of conditional fee arrangements (CFAs). Edwin Coe partner David Greene says: “Jackson addresses what he sees as the imbalance that the CFA regime introduced between the claimants and defendants.” But according to Peter Smith, managing director at legal expenses insurer First Assist, Jackson LJ’s proposals tip the balance too far in the defendant’s favour. “It’ll certainly reduce the number of claims being brought,” he says. “We’re disappointed that the Access to Justice Act has effectively been repealed while the Government seems to be doing away with legal aid.” One litigator tells The Lawyer he would be less inclined to take on cases if recoverability is scrapped. “We just wouldn’t be able to afford it,” he explains. “The success fee pays for cases we may lose.” Addleshaw Goddard head of litigation Simon Twigden suggests that there would be less motivation to settle claims if the proposals went ahead. “A properly structured and staged ATE premium is a powerful tool in driving meritorious commercial claims,” he says. of the earlier settlement
Page100 Instead of being driven to settle because of the ‘loser pays’ notion, the report suggests that where a defendant refuses to settle a claim but fails to do better in court, the defendant should pay an uplift of 10 per cent on damages awarded.
In addition, the option of using alternative costs models such as contingency fees should be available. This has divided the profession. Jackson LJ recognizes that contingency fees, which allow solicitors to take a percentage of a payout, could be left open to abuse. Therefore these should be regulated properly and arranged by an independent solicitor. Stewarts Law head of PI Paul Paxton says this would have an adverse effect because claimants would be undercompensated. Yet Twigden believes that, for commercial clients at least, a contingency model would be a welcome development. “If contingency fees are adopted,” says Twigden, “Lord Jackson’s proposals in this area would represent a revolutionary change in public policy, and that’s got to be good news for commercial litigants. “It would allow us to provide our clients with even better access to justice in complex, high-value litigation: a simpler and more transparent regime that incentivises lawyers to settle cases early and concludes with an actual result for our clients that is proportionate whatever the outcome.” The issue here, however, is that commercial clients may be able to afford commercial fees, whereas individuals with low-value claims may not. Jackson LJ’s primary aim is to shake up the market to force lawyers to find innovative ways of charging clients. “The focus of our litigation process should be upon compensating victims, not upon making payments to intermediaries and others,” he says. It is an ambitious and bold aim and one that has been motivated by the honorable desire to facilitate access to justice. But lawyers, particularly in the claimant arena, are unconvinced that the proposals will work. “We’re genuinely concerned about access to justice,” says one. “In one swoop Jackson’s destroyed the claimant model and locked claimants out of the courts.” Andrew Parker, head of strategic litigation, Beachcroft* Many observers will focus on the proposed reforms that would have the most direct impact on their own business, whether that be removing the recovery of success fees or ATE premiums, banning referral fees or fixing fast-track costs for all PI cases. But lawyers should look at the whole package of reforms collectively. The clear and stated intention in these cost-control measures is to provide access to justice, both for claimants with valid claims and for defendants with valid defenses. That is very much in the public interest. Practitioners cannot afford to ignore the report. There was a strong message of judicial intent expressed, that measures will be taken to implement these proposals as fully as can be achieved.
Although some key points will require primary legislation, the bulk of the very detailed proposals will not need to wait for that. Jackson LJ will have a role in the implementation of these plans and, given his track record so far, no one should doubt his ability to deliver. *Andrew Parker was one of Jackson LJ’s assessors Graham Huntley, dispute resolution partner, Lovells The basic approach is clear: in larger cases judges should assume more responsibility for managing costs. However, in lower-value cases pragmatism requires fixed costs to be introduced for the work prior to trial, when the judges will be much closer to the action. But in the thorny areas of PI, defamation and judicial review cases, Jackson LJ has found a delicate balance between the competing interests of clients, insurers and the need for access to justice. The solution is imaginative: the claimant, often the financially weaker of the parties, should be able to litigate knowing that they may not have to pay more than they can afford.
Page101 Perhaps the most subtle, but in time the most significant, change will be the recommendation for all practitioners and judges to be trained in costs issues. This can only help judges discharging Jackson LJ’s call for more hands-on case management. Geoff Nicholas, commercial disputes head, Freshfields Bruckhaus Deringer Jackson LJ’s recommendation for qualified one-way costs-shifting for PI cases leaves defendants facing the possibility that their costs would not be recoverable upon success. This risk is particularly acute for defendants in collective PI actions, which may also be brought on a contingency fee basis, resulting in some scope for ‘risk free’ collective litigation. Jackson LJ suggests that the ‘‘genera’’ pre-action protocol should be repealed, and that in standard commercial litigation there should be a simple requirement for “appropriate pre-action correspondence”. This is sensible and should reduce the need for very detailed letters before action and the consequential frontloading of costs. Jackson LJ’s support for a ‘menu’ of disclosure options in large commercial cases will also be welcomed by most practitioners and clients. This encourages the parties to give real consideration to whether the burden and cost of standard disclosure can be avoided.
David Greene, litigation partner, Edwin Coe For commercial litigators there are interesting points raised in the detail of the report, but generally Jackson LJ has left the commercial side alone. He does recognize, however, that small and medium-sized enterprises (SMEs) have restricted access to the courts because of the costs. The difficulty that is faced by SMEs is that they are faced with an adversarial system that is inherently expensive. As the London Solicitors Litigation Association and the Law Society have recommended, consideration needs to be given to the procedure itself and trying to simplify it in some way. As the judges who presented the report accept, some of the responsibility for where we are lies with the judiciary. They already have the power to manage cases, both in procedure and costs. One element of the report is a call to arms for those judges to manage cases proactively. Many of the changes can be carried out without legislation. For example, referral fees were outlawed by professional rules, but the Law Society is looking at those again. The proposals may give that campaign a fillip. Similarly, case and cost management can be undertaken under current rules without primary legislation. Simplifying the smaller claims procedure can also be undertaken through the rules committee. David Allen, London litigation head, Mayer Brown In addition to the headline-grabbing recommendation regarding contingency fees, I was struck. The decision in Carver v BAA plc (2008) has to be one of the most heavily criticized in recent years, introducing as it did uncertainty into the Part 36 regime. Jackson LJ has sensibly recommended that the decision be reversed. Although this reversal was trailed in Jackson LJ’s preliminary report, his other recommendation on Part 36 will surprise many. Jackson LJ recommends that, where a defendant rejects a claimant’s offer but fails to do better at trial, in addition to the enhanced costs and interest already available, there should be an uplift of 10 per cent on damages awarded - although he accepts that the uplift may be scaled down in claims of more than £500,000. This recommendation is aimed at increasing the number of cases that settle early and is intended to force defendants to accept reasonable offers. Jackson LJ asserts that he is leveling the playing field, but although encouraging settlement is laudable, defendants and their advisers may grumble that this verges on the penal.
Page102 Dr Mark Friston, barrister, Kings Chambers The quality of Jackson LJ’s report demonstrates a level of industry that is possessed by only a select few. If you were of a political bent, you could complain that he proposes a system of funding that favours the middle classes. This is because the main source of funding seems to be before-the-event insurance, the cost of which will no doubt rise. If you were a traditionalist, like the Chancery Bar Association, you might lament the passing of the indemnity principle, an ancient doctrine that has had its image unfairly tarnished by badly drafted delegated legislation that was rushed through Parliament with indecent haste. Most of all, if you were an ATE insurer, you could express bewilderment at the way that UK plc sought to nurture the fledgling market one minute, only to annihilate it the next. All of these concerns would be entirely justified, but it is easy to complain, harder to compose. If I were asked to contrive a better plan, I would fall silent: this is because litigation funding is an insoluble problem. Simon Twigden, litigation head, Addleshaw Goddard Of key importance to commercial clients is the potential introduction of contingency fee arrangements. If a properly regulated contingency fee regime is implemented, it would represent a revolutionary public policy change that would deliver even better access to justice, with a simpler and more transparent regime that incentivises lawyers to settle cases early, achieving a result that is proportionate whatever the outcome. This is what our clients want and we are ready to pioneer the use of these arrangements. We do have reservations regarding the proposal to abolish the recoverability of ATE premiums and anticipate the lively debate this proposal will generate. A properly structured ATE premium is a powerful tool in driving the earlier settlement of commercial claims. Abolishing recoverability may also have unwanted consequences on the pricing structures of third-party litigation funders, who although capable of operating without ATE, rarely do. Add to this the recommended removal of the cap on funders’ exposure to adverse costs, and the result may increase the risks associated with funding, so that access to justice is inhibited, not encouraged. Sonya Leydecker, Litigation Head, Herbert Smith Jackson LJ’s report recognizes that dealing with cases at proportionate cost means that one size does not fit all.
In large-scale commercial cases the rules should allow the parties flexibility to conduct their dispute appropriately, without too many constraints. The report is helpful in promoting such flexibility, for example in proposing a ‘menu’ of disclosure options for large commercial claims. This should allow the most appropriate level of disclosure to be adopted for each claim, as well as ensuring that the parties and the court focus at an early stage on the extent of disclosure needed. Another helpful recommendation for commercial cases is to expand the use of docketing, so that cases may be allocated to a designated judge. Jackson LJ has also taken on board that defendants must have access to justice as well as claimants, recommending an end to the current regime in which CFA success fees and ATE insurance premiums are recoverable. This recommendation is certainly welcome in the context of commercial claims. There is no obvious reason why defendants should be liable for the additional costs resulting from claimants choosing to litigate on a cost-free basis.
Page103 8. Will human rights assist? Although human rights law can assist by compelling the state to provide legal aid, this only applies in limited circumstances. In the criminal context, Article 6 of the European Convention on Human Rights provides that everyone has a right “to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.” But states have been given wide discretion as to the definition of “sufficient means”. You do not have to be poor to get legal aid: in April, three ex-MPs being prosecuted for expenses fiddling were granted legal aid to fight (some of) their cases. And it must be in the interests of justice to grant assistance. A person can also be asked to pay the state back if s/he is found guilty. Other articles of the Convention can also provide a right to legal aid. For example, Article 2 (the right to life) can sometimes compel the state to fund an investigation into a death, which can include legal representation for relatives of the dead. Mr Clarke announced that this is to remain, although realistically he could not have withdrawn such funding due to commitments under human rights law. 9. New costs arrangements The Justice Secretary also announced that the Jackson Report on the costs in civil cases in England and Wales will be largely implemented, and particularly proposals involving no-win-no-fee cases, as well as the introduction of US-style contingency fees, where lawyers take a cut of their clients’ winnings. This is
of direct relevance to the legal aid system, as funding arrangements such as no-win-no-fee will increasingly be the only way for those who cannot afford a lawyer to secure legal representation. Legal aid cuts will hit women the hardest, says justice department Ethnic minorities and disabled people will also miss out after £600m cut to family law and divorce funding. The government proposed wide-ranging changes to reduce spending on legal advice and representation on issues such as divorce, housing, employment, immigration, debt and welfare benefits by more than one quarter, thus saving £600m a year. Family law including divorce and child residence cases would no longer be eligible for legal aid other than where domestic violence, forced marriage or international child abduction is proven. Similarly, women suffering pyschological abuse are disqualified under the legal aid reforms. Ethnic minorities and people with disabilities are also more likely to be denied legal aid after the reforms, which will also end most funding for welfare and education disputes. Women’s rights groups are expressing profound concerns that the definition of abuse is that of physical violence, meaning that women – and men – suffering psychological victimisation will have to pay to escape their marriages. The government says it hopes the changes will lead to more mediation when relationships break down. The admission that the reforms will disproportionately affect the three groups comes in the equality impact assessment, a document the government itself is legally required to produce examining the effects of any major reforms. The assessment was published in draft form when the green paper came out in November, but opposition MPs are complaining that it has not been acted upon. Catherine Mckinnell, the Labour MP for Newcastle North and shadow solicitor general, said: “This government makes grand statements about their swingeing cuts being ‘fair’. I believe that their legal aid proposals are part of a wider trend, evident under this government, whereby cuts – undertaken for political, not purely economic, reasons – are being targeted at vulnerable people not able to fight back.” The equality impact assessment says: “Of those clients who would be affected by the civil proposals, 57% were women and 42% men ... compared with the population, which is 51% female and 49% male. Women are more likely to be affected by the proposals than men.” Emma Scott, director of Rights of Women, which is campaigning against the changes, said: “We know already that in family law women are the majority of applicants for legal aid. In 2006, 62% of all applications for legal aid were for women. “If you remove legal aid for women to sort out the finances after marriages break down, we know it’s really difficult to represent yourself. We say ultimately it will increase women’s poverty because they will not be able to reach satisfactory arrangements.” She also warned against the redefinition of abuse under the proposals.
Page104 “What they are saying is that legal aid for family law cases will continue to be available where domestic violence is a feature, but they define it as woman being at risk of physical harm. It’s absolutely far too narrow. Psychological abuse is widely recognised by this government, and the UN, as abuse, but this change doesn’t,” she said. The Ministry of Justice said it had to make “difficult decisions” about restricting legal aid, but had carefully considered the impact on women, people from ethnic minorities and those with disabilities and was convinced that those most in need, such as people affected by domestic violence, would still qualify. The ministry had to restrict the definition of domestic violence to one that could be demonstrated through “clear, objective evidence”. The spokesman added: “At this stage we are consulting on the proposals and we welcome views on whether there are any additional circumstances in which such evidence may be present.”
Page105 Chapter11: MISCARRIAGES OF JUSTICES CONTENTS: A. Miscarriages Of Justice B. The Criminal Justice White Paper: JUSTICE FOR ALL C. The Criticisms D. Miscarriages of Justice: An Assessment of the Criminal Justice System E. Remedies in the form of the appellate review/structure
A. MISCARRIAGES OF JUSTICE Miscarriages of justice are an everyday occurrence. By definition, a miscarriage of justice is the failure of the legal system to attain the desired end result of justice. This can arise as a result of either a positive act or an omission on the part of the legal system and the government. As the government plans a thorough overhaul of criminal justice, it needs to ask why so many unsafe convictions are overturned. The wrongly convicted are victims too.
The Lord Chancellor, Lord Irvine requested the Court of Appeal judge Sir Robin Auld to conduct a review of the criminal justice system in 1999 and it is clear that the outcome of the review is the most farreaching reform programme in 30 years. If the report were implemented in full it would mark the greatest change to criminal justice in more than 100 years. For the government, however, the Auld report offers a far more radical blueprint for change than it is willing to introduce. The key recommendations of the report are: (i) Ask juries to explain verdicts (ii) Restrict right to jury trial – in fraud cases, the judge to direct a trial by himself with two lay members; (iii) Restrict jury duty exemption (iv) Unify magistrates and crown courts (v) Remove minor offences from court system (vi) Create appraisal system for judges (vii) Include ethnic minorities on relevant juries (viii) Improving Court of Appeal procedures (ix) Sentencing “discounts” for early guilty pleas (x) Minor offences removed from the court system (xi) Criminal Justice Board to keep the system under review. The government’s criminal justice reforms, proposed in the recently published White Paper, ‘Justice For All’, are based on a single clear priority to rebalance the criminal justice system in favour of the victims of crime and to bring more offenders to justice. The explicit goal is to make it easier for the prosecution to secure guilty verdicts and to convict more people. This would seem to be at odds with the reality of criminal justice in England and Wales. The prison population stands at an all time high of over 70 thousand and the prosecution already achieves the conviction of over 95 per cent of defendants at magistrates’ courts and 87 per cent of defendants in the Crown Court.
Page106 The White Paper seems to forget that not all those brought to trial will be guilty. Thus, a reform agenda with framed in a language of putting the victim first overlooks the fact that there are many victims of the present criminal justice system. Any human system can make mistakes and that miscarriages of justice can and do occur. But, just how many miscarriages of justice victims of the present system are there?
We tend to think about miscarriages of justice as rare and exceptional occurrences. Prominent cases such as the Birmingham Six, Guildford Four, Bridgewater Four, M25 Three, Cardiff Three, Stephen Downing and do on create the impression that miscarriages of justice are seen as very much an intermittent, high profile and small scale problem; that there are very few victims in the context of the statistics of all criminal convictions. But there are many more cases than those, which receive prominent coverage in the media. Those cases of criminal conviction that are routinely quashed by the Court of Appeal (Criminal Division), or by the Crown Court for convictions previously obtained in the magistrates’ court have received no attention at all. If we pay more attention to these routinely quashed convictions, we find a scale of miscarriage of justice to fundamentally challenge any notion that the current system of criminal justice is weighted too much in favour of the defendant. Justice For All also states that there is an ‘absolute determination to create a system that meets the needs of society’, ‘wins the trust of citizens’ and ‘acquits the innocent’. Accordingly the government might think about proposing reforms that would counter the causes of the thousands of routine wrongful criminal convictions that occur each year under the present criminal justice system. These causes include: (i) Misdirection by judges; (ii) Unreliable confessions such as in the cases of Stephen Downing, the Cardiff Three, Andrew Evans and King and Waugh who between them spent almost a century of wrongful imprisonment based on the unreliable confessions of the vulnerable. (iii) Unreliable ‘cell confession evidence’ as a result of financial and other incentives that featured most recently in the case of Reg Dudley and Robert Maynard who each served over 20 years of wrongful imprisonment as a consequence of a ‘bargain’ between the police and an informant who received a reduced sentence for his part in a robbery in exchange for the necessary evidence for conviction. (iv) Non-disclosure of vital evidence as in the case of John Kamara who also spent 20 years of wrongful imprisonment because over 200 statements were withheld from his defence team. (v) Malicious accusations such as in the case of Roy Burnett who spent 15 years of wrongful imprisonment for a rape that the Court of Appeal said ‘almost certainly never happened’, or Roger Beardmore who spent three years in prison (of a nine year sentence) for the paedophile rape of a young girl who later admitted that she had lied to get her mother’s attention. (vi) Badly conducted defences such as in the case of Mark Day who was convicted for murder with two others despite the fact that he did not know his co-defendants, a fact that his defence had failed to bring to the court’s attention. (vii) Racism such as in the case of the M25 Three, the case in which three black men were wrongly imprisoned for 10 years despite the fact that witnesses had claimed that two of the offenders were white and four of six victims had referred to at least one of the offenders as white. Recently an alarming
report published in December 2002 revealed that black people were six times more likely to be sent to prison than whites and black people are five times more likely than white people to be stopped and searched by the police. Further, once these black people are arrested they are more likely to be remanded in custody than other offenders charged with similar offences. Essentially the report highlights the fact that the home office is aware that black people are disproportionately represented in the criminal justice system. (viii) Police corruption and judicial naivety. The police in giving false evidence to secure convictions against those they have deluded themselves into thinking are guilty and the judiciary invariably accepting their word in preference to those of innocent defendants.
Page107 One of the worst examples of this was the various injustices suffered by the Birmingham Six. Four of the six had made confessions that they claimed with good reason had been beaten out of them by police brutality. This the police denied and at their trial Mr Justice Bridge supported them, describing the Six’s allegations as bizarre and grotesque and praising the police who had lied in their teeth as being honest and straightforward witnesses. Next the Six applied for legal aid to sue the police for injuries inflicted while in police custody. When this reached the Master of the Rolls, Lord Denning, he struck it out on the depraved ground that if it were proved that the confessions had been obtained by violence and threats, the Six might have to be pardoned; and this was such an appalling vista that every sensible person in the land would say it would not be right for the action to proceed. Next the Lord Chief Justice, Lord Lane, dismissed their 1988 appeal, despite impressive new eyewitness evidence that the Six had suffered violence and abuse in police custody. To this he turned a blind eye saying in his judgment: “As has happened before in references by the Home Secretary to this court, the longer the hearing has gone on, the more convinced the court has become that the verdict of the jury was correct.” The same happened in the Maguire Seven when Mr Justice Donaldson at the trial of Vincent Maguire who had also complained that the police had beaten him up. “You have seen the police officers, “he told the jury, “and they denied using any violence at all.” well, they would, wouldn’t they? (i) The adversarial system of justice, which is shared with the United States, Canada and Australia, has caused miscarriages of justice to occur on a scale unknown in countries that practice the inquisitorial and other systems. It is clear that the present system of criminal justice is, indeed, in urgent need of reform. But this should not be in the direction of a relaxation of the system in favour of obtaining more guilty verdicts and convicting more people. Rather, the present system need to be reformed in the direction of ‘rebalancing’ it with its stated aims, namely to safeguard against convicting of the innocent. The present
system makes far too many mistakes. Convicting more of those brought to trial will undoubtedly mean making even more mistakes and convicting even more innocent victims.
B. THE CRIMINAL JUSTICE WHITE PAPER: JUSTICE FOR ALL The White Paper sets out a wide-ranging programme for reform for the criminal justice system in England and Wales. The White Paper, Justice For All, sets out a coherent, long-term strategy to modernise the criminal justice system from end to end – from detection to rehabilitation of offenders – with a clear focus on fighting and reducing crime. The proposals aim to create a transparent, joined up system that commands the respect of the public it serves by delivering faster and more effective justice for victims and the wider community while safeguarding the rights of defendants. At the heart of the strategy is ensuring better deal for victims and witnesses, fairer more efficient trials, clearer, consistent and constructive sentencing, more effective punishment and rehabilitation, and measures to join up the system and engage the public. It is acknowledged here that we have a criminal justice system of which we can be rightly proud. But to remain responsive to the communities it serves, the system needs to move with changes in society. Crime impacts hardest on the poorest members of society who have been repeatedly victimised throughout their lives. Reducing it is a social justice priority. Far too many offenders escape justice, creating the ‘justice gap’ between the numbers of crimes recorded by the police and the number where an offender is brought to justice. Thus the need to introduce reforms to improve coherence of the system as a whole. Objective of the reform process: is based on a single priority which is to rebalance the criminal justice system in favour of the victim and the community so as to reduce crime and bring more offenders to justice. To achieve strong and safe communities means that: (i) Tough action on anti-social behaviour, hard drugs and violent crime; (ii) Rebalancing the criminal justice system in favour of the victim; and (iii) Giving the police and prosecution the tools to bring more criminals to justice.
Page108 The four practical steps of focus: (i) Reducing offending whilst on bail; (ii) Building strong cases to put before the court;
(iii) New procedures which get the case to trial quickly, with reduced chances of the accused ‘playing the system’ and escaping justice if guilty; (iv) Simplifying and modernising the approach to evidence; and effective sentencing and punishment that works. To ensure better detection, a radical programme of police reform has been suggested. This would cover the following: (i) To reduce offending on bail the police would be given new powers to impose conditions on bail before charge and extend the prosecution’s right to appeal bail decisions. (ii) To get more defendants to court, there will be the closest possible working between the police and the Crown prosecution Service to make sure that cases do not slip between the cracks because of poor case preparation or inadequate charging. (iii) To convict more of the guilty focus will be on the relevant issues, and does not have any surprises because the prosecution and defence will disclose their cases more fully pre-trial. (iv) At the trial, magistrates, judges and juries are able to hear all the relevant evidence that fairly bears on the defendants’ guilt or innocence. (v) Where a defendant is convicted, if there is a danger to the public or a serious or persistent offender, they will be put into custody. For other offenders there will be a range of penalties that are effective in punishing them and in tackling re-offending. The purpose of the White Paper is to send the clearest possible signal to those committing offences that the criminal justice system is united in ensuring their detection, conviction and punishment. The reforms to improve the coherence of the system as a whole would include: 1. Getting the process right at the start The treatment victims and witnesses receive at this early stage will shape their whole view of the criminal justice system, and could determine their willingness to give evidence and appear in court later. The charge that has been brought has to be the right one for the offence committed, backed by sufficient evidence. To do this the White Paper proposes: (i) Give the police power to impose conditions on a suspect’s bail during the period before charge; (ii) weigh the court’s discretion against granting bail to a defendant who has been charged with an imprisonable offence committed whilst already on bail for another offence; (iii) extend the prosecution’s right to appeal against bail decisions, to cover all imprisonable offences;
(iv) as soon as practicable, give CPS responsibility for determining the charge in cases other than for routine offences or where the police need to make a holding charge, and provide pre-charge advice to the police; (v) pilot in high crime areas a presumption of remand to custody if a suspect tests positive for Class A drugs at arrest but refuses treatment; (vi) provide appropriate incentives and sanctions to promote effective and focussed case preparation in criminal courts; (vii) improve defence disclosure by increasing incentives and sanctions to ensure compliance; (viii) remove restrictions on the jury being invited to draw inferences from discrepancies between the pre-trial defence statement and the defence case at trial.
Page109 2. Delivering justice – fairer and more effective trials The aim here is that the cases must be tried in the most appropriate court and when they come to trial the guilty must be convicted and the innocent must be acquitted, promptly and transparently. An individual is innocent until proven guilty and the prosecution must prove their case against the defendant beyond reasonable doubt. The system however should not succumb to delay and obstruction to avoid a rightful conviction. The recommendations also suggest that more evidence should be made available to magistrates, judges and juries. Relevant convictions, including criminal convictions, should be admissible unless there are good reasons to the contrary, such as jeopardising the right to a fair trial. Under the recommendations, the guilty will have nothing to gain by delaying their plea, saving victims and witnesses from an unnecessary ordeal and the accused who wants to contest a charge will know that the trial and its preparation will focus on the search for truth. To do this the White Paper proposes: (i) Overhaul the rules of evidence so that the widest possible range of material, including relevant previous convictions is available to the court’s (ii) Extend sentencing powers of magistrates from to 6 to 12 months and require them to sentence all those they have found guilty, rather than committing some to be sentenced in the Crown Court; (iii) Allow defendants to have the right to ask for trial by judge alone in the Crown Court; (iv) Allow trial by judge alone in serious and complex fraud trials, some other complex and lengthy trials, or where the jury is at risk of intimidation;
(v) Strengthen youth courts to deal more young offenders accused of serious crimes; (vi) Introduce a criminal evidence code and original statements and change the laws on reported evidence (hearsay); (vii) Introduce an exception to the double jeopardy rule in serious cases where there is compelling new evidence; (viii) Allow prosecution a right of appeal where the judge makes a ruling that effectively terminates the prosecution case; and (ix) Integrate the management of the courts within a single courts administration and allow Crown Court judges to conduct trials in magistrates’ courts. 3. Putting the sense back into sentencing To make amends for their crime and contribute to crime reduction. Technological advances such as tagging and voice recognition technology, give innovative ways to deny liberty, reduce re-offending and ensure community sentences are not a soft option. The punishment must be appropriate to the offence and the offender, ensure the safety of the community and help rehabilitate offenders to prevent them re-offending once and for all. Sentences must be consistent across the country and prison must be reserved for serious, dangerous and seriously persistent offenders and those who have failed to respond to community punishment, with effective alternative sentences for other offenders. To do this the White Paper proposes: (i) Set up a new Sentencing Guidelines Council to end the unacceptable variations in sentencing; (ii) Introduce a new sentence to ensure that dangerous violent and sexual offenders stay in custody for as long as they present a risk to society; (iii) Enable the courts to request drug treatment as part of a range of community sentences for young offenders as well as adults; (iv) Make the release of all juveniles sentenced for serious crimes subject to decision by the Parole Board and require them to be supervised until the end of their sentence, as is the case for adults; (v) Introduce a fine enforcement scheme under which the fine will increase if the offender fails to pay; (vi) Publish a Paper in the Autumn on the law reform of sexual offences and proposals to overhaul the Sex Offenders Act; and (vii) Look at ways to develop and pilot further intensive fostering to include more young people on remand and as part of a sentence.
Page110 4. Punishment and rehabilitation Community sentences will be rigorous and robust enough so as to protect the public and effectively punish the offender by denying liberty and requiring reparation. A key part of sentencing must be rehabilitation to reduce re-offending and contribute to safer communities. Radical reform of sentencing policy should mean community punishment is a tough and credible alternative to custody with more time to rehabilitate those that remain in prison. But this reform will only achieve its goal if correctional policy works too. That means more support and supervision for those leaving prison, and better joint working between the Prison and Probation Services. To do this the White Paper proposes: (i) To give greater flexibility to probation officers to drug test offenders on release from custody; put 20,000 offenders through the National Probation Service accredited Community Punishment Scheme in 2003-4; (ii) Develop a comprehensive system and programme of aftercare for substance misuse; (iii) Pilot the ‘Going Straight Contract’ for 18-20s, which could include offenders making financial reparation to victims through contributions from their prison pay; (iv) Expand the testing and treatment of drug misusing offenders; (v) Modernise the prison estate through new-builds and closure of those establishments which no longer meet our needs; and (vi) Benchmark prisons and clarify the responsibility for setting standards and performance monitoring from operational management. 5. A better deal for victims, witnesses and communities Victims and witnesses are to be put at the heart of the criminal justice system and ensure that they see justice done more often and more quickly. They will be given the support and relevant information and to empower both victims and witnesses to give their best evidence in the most secure environment possible. A modernised criminal justice system demands justice for all. 6. The Criminal Justice Act 2003 The Home Secretary, David Blunkett was of the view that the antiquated rules with arbitrary effects and unpredictable consequences must be reformed. He also commented that obstacles to delivering a more effective and efficient system must be swept away to enable the criminal justice system to focus on what matters – the search for truth and the conviction of the guilty. Thus the Bill would help create a
more transparent and consistent system with the right punishment to fit the crime. The proposals were as follows: 7. Scrapping the double jeopardy rule Until now, a defendant could not be tried twice for the same serious crime, even if there is compelling new evidence. This will be overturned under the new proposals, but a number of safeguards will be included to guard against harassment of acquitted people. Prosecutors will only be allowed to ask once for an acquittal to be quashed, so there is no prospect of repeated retrials. 8. Evidence of bad character Jurors will be told of the defendant’s or witness’ previous convictions where it is “relevant to the case” such as establishing an obvious modus operandi in sex attack cases. 9. Indeterminate sentences Dangerous offenders, including sex attackers, could be punished with “indeterminate sentences” so that they could be kept inside after the end of their sentence if they are still considered a risk to society. 10. Magistrates’ sentencing powers Magistrates’ powers to impose jail terms will go up from 6 months to 12 months.
Page111 11. Lone judges Judges will be allowed to sit alone in complex cases such as fraud trials and where there is a danger of intimidation or bribery such as in major drugs or gangland violence cases. 12. Hearsay evidence Where a witness is not available to testify, his or her statement could be used in evidence, and there could be greater use of video recorded statements for crucial evidence in serious cases. 13. Deferred sentence Offenders may be expected to do community work as part of his deferred sentence. 14. Juvenile provisions The Bill extends the use of parenting orders by making them available at an earlier stage. 15. Drug provisions
The proposals allow testing of suspects for specified class A drugs and make a presumption against bail for anyone who tests positive but refuses to undergo assessment for treatment. 16. Police and Criminal Evidence Act The Bill extends stop and search powers for items intended to cause criminal damage, enables “street bail” or bail from the scene of arrest, extends a suspect’s detention under the authority of a superintendent from 24 to 36 hours for an arrestable offence. 17. Bail Committing offences while on bail will count against a defendant’s application for further bail under the plans. 18. Charging The Crown Prosecution Service will determine the charge of a suspect to see whether proceedings should be instituted and, if so, on which charge. Police will charge without reference on minor offences. 19. Conditional cautioning Suspects will be cautioned with specific conditions where there is enough evidence to charge them with an offence they admit. 20. Disclosure The prosecution will be required to disclose to the defence unused material that has not been previously revealed and which might be considered capable of undermining the prosecution case of assisting the accused. 21. Jury service Exemptions to jury service will be reduced to enable more people to serve. 22. Live links Witnesses will be able to give evidence using TV links from remote locations if this is more effective or efficient.
Page112 C. THE CRITICISMS Lord Justice Auld’s reforms have attracted several criticisms, which are as follows:
1. The Bar chairman, Roy Amlot, QC was of the view that the abolition of jury trials will undermine the public confidence in the criminal justice system. By all means strengthen the jury but do not abolish the system as a result of cost and efficiency. They are too important for that, he said. ‘We want jury-made justice and not judge-made justice’ or else we alienate communities who trust the juries. 2. Lord Justice Kay, a Court of Appeal judge had reservations in relation to the creation of a new intermediate court and the fact that appeals can be made on the basis of ‘perverse’ verdicts and in some instances the juries should give reasons for their verdicts. 3. Lord Woolf, the Lord Chief Justice was also critical about the proposal towards the abolition of the jury. 4. John Wadham, the director of ‘Liberty’ raised the fear that jury may erode fairness in the criminal justice system with the removal of trial. 5. The Law Society objected to the creation of an intermediate court in the case of triable either-way offences where trial by jury would no longer be available, as this would add an unnecessary level of bureaucracy. None of these criticisms prevented the Home Secretary, Mr David Blunkett from giving his tacit approval to the plan, when he said Sir Robin’s intermediate tier of courts offered a possible way forward on issue of jury trials, which might overcome some of the objections that were raised in relation to the Mode of Trial Bill.
The Criminal Justice Bill ‘under fire’ The joint statement from Liberty, Legal Action Group, the Criminal Bar Association and the Bar Council set out their concerns about the criminal justice reforms: (i) As to the removal of jury trial in fraud and complex cases according to their believe is unacceptable and jury trial must not be eroded on the grounds of expediency. There are the real and obvious dangers in establishing different processes for ‘simple blue collar crime’ and ‘complex white collar crime’. Thus the argument that the jury find difficulty in understanding serious fraud cases is unacceptable. In so far as do, the solution lies in more judicial direction and in simplifying the law relating to fraud. (ii) As to the double jeopardy rule whilst the desire is to ensure that justice is done in cases where an acquittal is called into doubt, there would be overwhelming practical problems with removing it. There is no guarantee that it would be possible for a second trial to be a fair trial as there would be a significant risk that jury members would know that the Court of Appeal had ruled that there was compelling new evidence. It is quite wrong to suggest that a change to the law in this area would pave the way for retrials in cases such as those of Stephen Lawrence and Damilola Taylor. Given that all pertinent evidence was reasonably available at the time, the failure to bring either case to an acceptable conclusion has been a consequence of inadequacies in the police force and the prosecution. The true
result is that any relaxation of the bar on double jeopardy might result in repeated prosecutions of unpopular defendants to achieve a popular result, and lead to them being hounded by the media. (iii) As to the admissibility of previous convictions, acquittals and hearsay evidence this would have serious implications as it would have a serious prejudicial effect unless they are truly relevant to an issue in the case. Weak cases should not be bolstered by prejudice. It greatly undermines the presumption of innocence and risks serious miscarriages of justice. In the case of hearsay evidence, as opposed to civil proceedings, in criminal cases the prosecution has to prove its case beyond reasonable doubt and here a defendant may face loss of liberty if hearsay evidence is made more readily admissible. (iv) As to the requirement of disclosure it is unacceptable that the prosecution is given the opportunity to ‘check out’ the defence case and this would amount to the blurring between the inquisitorial and adversarial systems of criminal justice. The requirement to allow the prosecution to early disclosure would be amounting to us moving towards an inquisitorial system.
Page113 The arguments put forward by the Shadow Home Secretary, Mr Oliver Letwin: It is submitted that the Home Secretary, Mr David Blunkett recognises that the crisis we face in the criminal justice system and is making every effort to do something about it. However, in rebalancing the criminal justice system, what should not be compromised are issues concerning our historic liberties – the right of the individual to resist the arbitrary power of the state – that are under threat. For example, the recommendations towards the removal of the double jeopardy rule. Adjusting the rules on double jeopardy to allow for a retrial may have real merit in a small number of cases where it becomes clear that there is compelling evidence that a dangerous and wicked criminal has wrongly been acquitted of a serious offence. In practice, however, it might also make a fair retrial extremely difficult if the necessary safeguards are absent. Thus unless there are benefits without damaging principles of justice this recommendation is a threat. Particular reference may have to be made at the safeguards developed in Sweden, to see how these have worked in practice. Unless adequate safeguards exist, the admission of previous convictions might produce potential prejudice. The Conservative chairman, Theresa May said that that although it is the right focus adopted by the Criminal Justice Bill, which is on crime victims, it does not offer any long term, coherent strategy to the problem of crime. She said: “We’ve heard it all before – this government’s approach to tackling crime remains short term and based on gimmicks.” The director of Liberty, Mr John Wadham accused the government of trying to cut crime rates by “making trials less fair”. “It will send more innocent people to prison. The government wants a shortcut justice, because it is cheap and it gets good headlines. But it is wrong and it won’t solve the problem.”
Labour peer Baroness Helena Kennedy QC was of the view that the proposals were quite frightening as it amounted to fundamental attacks on civil liberties. She said the reforms were a “confidence trick” and predicted that they would be blocked in the House of Lord. Bar Council’s, Matthias Kelly was of the view that the government is returning again to try to erode the right to trial by jury, when it has already been defeated time and time again on the issue. “People trust juries, and want a justice system which features juries wherever possible.”
D. MISCARRIAGES OF JUSTICE: AN ASSESSMENT OF THE CRIMINAL JUSTICE SYSTEM Introduction ‘Criminal Justice Under Stress’ would probably be the most suitable phrase to describe the miscarriages of justice. A ‘miscarriage’ literally means a failure to reach an intended destination or goal. A miscarriage of justice is therefore a failure to attain the desired end result of ‘justice’. Assertions that the British system of justice is the best in the world or that miscarriages of justice are few and far between can no longer be sustained without argument. By definition, there are a number of judgments concerning the miscarriages debate where it has been demonstrated that the miscarriages of justice debate has nothing to do with the conviction of the guilty nor the acquittal of the innocent. This was represented by the Court of Appeal in the appeal of R v Davis, Johnson and Rowe. The decision represents the fact that the miscarriage arising was as a result of the irregularities and the convictions were unsafe. Rather, then, the criminal justice process operates on an altogether different plane to the ideological struggle between the due process versus crime control combatants. In the absence of a crystal ball or concrete certainties about the perpetrators of alleged crimes it relies on an elaborate system of rules and procedures which attempts to ensure that suspects of crime and defendants in criminal courts receive a fair hearing. Hence, from this perspective the miscarriage of justice concept is not so about whether a person convicted of a criminal offence is innocent of the crime but rather whether the person received a fair and just treatment, in accordance with the rules and procedures of due process.
Page114 It can therefore be argued, that in accordance with the above perception of miscarriages of justice, cases such as the Birmingham Six, the Bridgewater Four, the Maguire Seven and the Guildford Four were decided. It can be contended that unless and until a successful appeal is secured against a criminal conviction, until then he or she remains an alleged miscarriage of justice.
In England and Wales, the criminal justice system is not about the pursuit of the objective truth of a suspect’s or defendant’s guilt or innocence. Adversarial justice is an evidential contest, regulated by principles of due process, compliance with the rules and procedures of the legal system. As such the key principles underlying English criminal law are stated as the presumption of innocence and the standard of proof. This had been demonstrated by the House of Lords in the case of Director of Public Prosecutions v Shannon (1974) 59 Cr. App. R.250 where it was established that criminal trials are not about considerations of factual innocence or factual guilt in any straightforward sense; whether a defendant is guilty or not guilty is determined on the basis of the reliability of the evidence before the court. A miscarriage of justice is also assessed in terms of an abuse of process which can be defined as something so unfair and wrong that the court should not allow the prosecutor to proceed with. For example, where fundamental rights of the people or the defendant were disregarded or denied: R (Mullen) v Secretary of State for the Home Department (2002). On the facts of Mullen, it was found that there was a blatant and extremely serious failure to adhere to the rule of law. Mullen’s conviction was deemed unsafe after it was found ten years into his 30 year sentence that all involved in his deportation from Zimbabwe – the police, the Security Service, and officials from the Foreign office and the Home Office as well as relevant authorities in Zimbabwe - had colluded to secure his extradition in breach of domestic law in Zimbabwe and internationally recognized human rights. In quashing the conviction, it was a form of condemnation of the behaviour of the prosecuting authorities in ever bringing the case of Mullen to trial. Hence Lord Justice Rose was of the opinion that for a conviction to be safe it must be lawful; and if it results from a trial which should never have taken place; it can hardly be regarded as safe. It is submitted that, criminal justice systems should be judged on the number of injustices produced by them in the first place and secondly, on their willingness to recognize and correct those mistakes. To what extent does the British criminal justice system comply with these positions? How does it perform in comparison with other systems? These are the fundamental issues to be discussed in relation to any questions concerning the miscarriages of justice. It is in this context where it is paramount to discuss the theories and perspectives underlying the criminal justice system to assess miscarriages of justice in terms of whether the theoretical perspective has been distorted to the extent of being totally futile today. It would be necessary to identify the meaning of justice and the ways in which it may be denied to this end. Generally the idea of justice has been subject to a variety of definitions and philosophically it has been subject to much criticism particularly from the viewpoint of the Marxist writers, the critical legal scholars and the feminist movements. The essence of their views is that the liberal idea of justice is flawed in that it is far from reality – the promise of liberalism towards upholding the individual liberties, freedoms and human rights of members of society are clearly a lie. Justice is about distributions –according persons fair shares and treatment. As far as the impact of the criminal justice system is concerned, it can be argued that the just treatment in a liberal, democratic society means that the State should treat individuals with ‘equal respect and concern’ for their rights
and for the rights of others. Professor Dworkin, in ‘Takings Rights Seriously’ holds this notion as the most sacred principle of individual rights. It would be worthy today to consider the importance of this principle in relation to the Human Rights Act 1998 paticularly Article 6 of the European Convention on Human Rights. Hence, the crux of any discussion of miscarriages of justice would be to evaluate whether the State is treating individuals with such dignity and as Professor Zander claims, the criminal justice system should demonstrate ‘integrity’. The preservation of individual liberties does not mean that the right is absolute. Herein arises the need for a proper balance to be attained between individual rights and collective interests (such as utility) where it would be proper to treat the former disproportionately when the need to protect the latter arises. The ever-present dangers of mistakes in the criminal justice system are reflected in the sentiment that ‘it is better that ten guilty persons escape than that one innocent suffer.’ (Blackstone, in Commentaries on the Law of England). The rhetoric of English criminal justice is that priority is given to protecting the actually innocent from wrongful convictions over bringing the actually guilty to justice. (Hobson’s case *1823+) Acquitting the innocent may be a priority but it is not the overriding consideration. The Court of Appeal judgment in the Judith Ward case acknowledges this in asserting that the task of the judge is: ‘To ensure that the law, practice and methods of trial should be developed so as to reduce the risk of conviction of the innocent to an absolute minimum. At the same time we are very much alive to the fact that, although the avoidance of the conviction of the innocent must unquestionably be the primary consideration, the public interest would not be served by a multiplicity of rules which merely impede effective law enforcement.’ (1993)
Page115 Not all are prepared to pay lip service to such rhetoric, however. A differently constituted Court of Appeal, giving judgment in the Birmingham Six case, merely observed that ‘justice is as much concerned with conviction of the guilty as the acquittal of the innocent.’ Similarly, the is no priority afforded to the protection of the innocent in the Philips Commission Report (1981) nor the Runciman Commission Report (1993) – it is submitted that this lack of commitment to a supposedly hallowed maxim of English law is reflected in the detailed rules and practices of the legal system itself. Further, as the United Kingdom lacks a written constitution, and still clings to the notion of supremacy of the legislature, there are no entrenched rights or principles governing the operation of the criminal justice system. However, it can be noted that the criminal justice system is now subject to a growing number of areas to EC law and, therefore, to judicial supervision from the European Court of Justice. Further, with the coming into force of the Human Rights Act 1998. Court are bound to recognize any incompatibility between domestic law and the articles of the European Convention on Human Rights and make a reference for Parliament’s deliberation towards the appropriate change to be made. (Sections 3 and 4 HRA 1998)
Hence the grand claims concerning the ‘right to a fair trial’ or the ‘right to silence’ is certainly subject to a detailed understanding of the actual rules in practice to determine to what extent is the acquittal of the innocent a priority of English criminal justice in fact? The main theoretical safeguard offered to suspects in the English system of criminal justice is the presumption of innocence. This presumption finds expression in the principle that guilt must be proved beyond reasonable doubt. (Viscount Sankey in Woolmington v DPP) However, the question today is to what extent is this ‘golden thread’ preserved since there are many in-roads recognized where the burden of proof is shifted from the prosecution to the defence. Further, it can be observed that the cardinal protection afforded to defendant’s so- called right of silence has also been subject to encroachment by the appellate courts which have allowed adverse comments to be made by trial judges in a whole range of situations.(Martinez-Tobon(1994)) The impact of the Criminal Justice and Public Order Act 1994 allows for the abrogation of the right of silence in certain circumstances clearly again exposes the English criminal justice system to further query as to the proper aims and priorities for the system and the principles which should govern its operation. It is submitted that the evidence which exists would clearly demonstrate that there is indeed a situation of ‘justice in error’ where there serious failures in the criminal justice system which have contributed to the miscarriages of justice. Broadly speaking these miscarriages can be classified in three stages: (a) pretrial errors; (b) trial errors and (c) post-trial errors. At all these three stages, each important institutional process has been criticized for contributing towards these failures. At the pre-trial stages, research conducted demonstrate that the police force who are responsible for the investigations of suspects have breached fundamental rules in maintaining the dignity of the criminal justice system. These aspects of denial of justice which is fundamental at the core of the system is further abused at the trial stages by the respective prosecuting and defence counsels who in turn lend support to the judge and jury to further abuse the process by the respective methods employed in assessing the position of the accused. Finally, the atrocities of the system is further highlighted by the appellate process which ultimately subjects the criminal justice system to further criticisms. Amongst the many disturbing features are the obtaining of confessions by unacceptable means, the fabrication of evidence; the failure to disclose evidence adverse to the prosecution; and the inadequacy of appeal and reference back systems.
Page116 According to Clive Walker in his book ‘Justice in Error’, miscarriages of justice occur in the context of the criminal justice system in the following ways:(i) Whenever individuals are treated by the State in breach of their rights; or (ii) Whenever individuals are treated adversely by the State to a disproportionate extent in comparison with the need to protect the rights of others; or
(iii) Whenever the rights of others are not properly protected or vindicated by State action against wrongdoers. In illustrating these meanings of miscarriages of justice it is clear that the term encompasses the following situations:(i) The meaning of miscarriages of justice is not confined to court or the penal (criminal) system – example would be where individuals are subjected to arrest or detention without due cause. In this context, ample evidence exists to demonstrate that young black males are subjected to an unsupportable degree of police attention because of the colour of their skins. Further, the conviction of a person known to be innocent or to convict one who has in fact committed a crime but lacks sufficient legal proof are examples of miscarriages arising where individuals are treated by the State in breach of their rights. (ii) Miscarriages of justice can be institutionalized within laws as well as failures in the application of the laws. (iii) Miscarriages of justice demonstrates some shortcomings by some form of state agency and therefore a degree of State responsibility.
Adversarial versus Inquisitorial Theories of Criminal Justice The principles underlying different criminal justice systems vary according to history, culture and underlying ideology. The adversary principle that it is for the prosecution to bring a case to court and prove the guilt is an important characteristic of the English system and of other common law systems such as Australia, Canada and the United States. The major alternative to adversarial systems is that posed by civil law systems such as France or Germany, based on the inquisitorial principles. When the Runciman Commission was set up, interest was expressed in inquisitorial systems as offering superior protection against miscarriages of justice. A brief comparison between adversarial and inquisitorial models of criminal justice would be relevant here. In an inquisitorial system, the dominant role in conducting a criminal inquiry is played, at least in theory, by the court. Hence prosecution and defence lawyers are consigned to a subsidiary role. In the pure adversarial system, by contrast, the burden of preparing the case for court falls on the parties themselves. The judge acts as an umpire, listening to the evidence produced by the parties, ensuring that the proceedings are conducted with procedural propriety, announcing a decision at the conclusion of the case. It has been alleged that in this context the inquisitorial system focuses on truth whilst the adversarial system focuses on proof. It is submitted that this claim is too simplistic. Both systems are concerned with establishing the truth, but they differ on the best way of achieving that end. The traditional English view has been that truth is best discovered by powerful statements on both sides of the question which are then evaluated by the passive and impartial adjudicator. It has been demonstrated that the danger of an inquisitorial system is that whoever conducts the investigation will
come to favour one particular view of the matter and that this will lead to bias creeping in. Alternatively, an adversarial system allow the parties to put forward their interpretations of the facts and law in the way favourable to them and hence it is argued that this would better achieve truth. It is submitted at this juncture, that in the search of the truth, an adversarial system may also be alleged of losing sight of the truth for different reasons: one or both of the parties might deliberately suppress relevant evidence for tactical reasons or one party (invariably the defence) might lack adequate access to the resources or expertise needed to counter-balance the arguments of their opponent. It is therefore submitted that neither system, at the theoretical level, is demonstrably superior in establishing the truth or at avoiding miscarriages of justice. The difference between the adversarial and inquisitorial systems of justice extend beyond the question of the best method to arrive at the truth. The adversarial model asserts that the reality of any criminal matter is that the state is trying to prove a case against a suspect. It is important, therefore, that guarantees are provided against the state abusing its investigative powers and that the means are provided to suspects to challenge the prosecution case. This is not portrayed by the inquisitorial system as the focus is on truth in order that the guilty are convicted and the innocent are acquitted. Hence the potential safeguard here is offered by judicial control of the investigation process. The adversarial system, on the other hand, by focussing on proof concentrates upon protecting individual dignity and autonomy by ensuring a fair trial which is conducted justly with the minimum of delay. It is argued here that separating one value, truth from the competing value of procedural fairness is clearly difficult. Other values also come into play such as economy and efficiency. Thus the result is accommodation and compromise. Non-adversarial, as well as adversarial values shape the procedures and operations of the criminal justice system, and these different values often conflict with each other.
Page117 Crime Control and Due Process Is crime control in conflict with due process and vice versa? These are competing demands which often involve tension with each other; the crime control model is aimed to preserving the deterrent effect of the criminal law with an overall objective of repressing crime - crime control prioritises the conviction of the guilty, even at the risk of convicting the innocent, and with the cost of infringing the liberties of the citizen to achieve its goals. The crime control model in its goal to achieve speed emphasizes upon the pre-trial processes as it is more likely to produce reliable evidence of guilt than formal court procedures. Thus, the lengthy and expensive trial procedure is eliminated. Hence, the police establishes the facts through interrogation and they will seek to extract confessions from those whom they presume to be guilty as this makes it very difficult for the suspect to do other than admit guilt at court. The crime control model accepts than some (but not many) mistakes will be made in identifying the probably guilty and the probably innocent, but it is prepared to tolerate such
mistakes for the sake of the overall goal of repressing crime. It is submitted that if too many guilty people were shown to be escaping liability, or the system was perceived to be generally unreliable (as it would be the case if it was shown that innocent people were being prosecuted on a large scale) then the deterrent efficacy of the criminal law would be weakened. The crime control model seeks to avoid this in a number of ways. Its first line of attack is to ensure a high rate of guilty pleas, as then the police and prosecutor judgments will not be challenged and the possibility of error will not be examined. Its fallback position is to characterize most acquittals as perverse or achieved on a technicality, rather than reflecting failures of police (or prosecutor) judgment. It is only when these tactics fail and there are many clear-cut miscarriages of justice that the crime control model accepts the need for safeguards to be built into the system to improve the reliability of informal fact-finding processes – however, these safeguards are kept to its minimum in order to achieve the renewed confidence of the public in the system. Too many safeguards would be inconsistent with speed and informality and the overall goal of repressing crime. A good example of the operation of the crime control model can be demonstrated with the following example. Perfectly credible evidence obtained through illegal arrests or coercive interrogations according to the crime control model cannot be vindicated by the criminal process itself through the exclusion of illegally obtained evidence or the quashing of the conviction where the rules have been breached. From this perspective it is intolerable that perfectly credible evidence is ruled inadmissible merely because the methods used to obtain it were improper. To let the guilty go free on such a technicality undermines crime control. The due process ideology is composed of a number of ideas and values. The due process model lacks confidence in informal pre-trial fact-finding processes. According to the due process model many factors may contribute to a mistaken belief in guilt and this may in itself give rise to unreliable evidence against the suspect. For example witnesses to disturbing events tend to make errors in recollecting details and confessions by suspects in police custody are as likely to be an indicator of the exertion of psychological coercion as they are to be of guilt. This leads to an insistence on formal, adjudicative, adversary fact-finding processes in which the case against the accused is tested before a public and impartial court. The due process model on the other hand rejects the crime control model on the basis that it fails to demonstrate the primacy of the individual citizen – hence the due process model is aimed at limiting/controlling official power and the presumption of innocence is a good example of the due process model since it places the burden on the state to prove legal guilt affirmatively in a procedurally proper manner. Thus, in certain situations, the concern with abuse of power in the due process model takes precedence over reliability. Suppose, for example, that the police had illegally obtained evidence that established beyond reasonable doubt that that a suspect had committed a murder. The due process model would none the less insist that the suspect walk free because of the procedural irregularity. The rationale underlying the due process model is to be vigilant in detecting the abuses of power by officials which in the long run will be more harmful to society than releasing one murderer. In curbing
official abuse of power and breaches of the rules is there some consolation which will guarantee adherence to the proper application of the rules.
Page118 A classic example to demonstrate this position is the Stephen Lawrence case (1997) where the Metropolitan Police (London) were accused of institutional racism. The case concerned the racist murder of Stephen Lawrence (a black) who was stabbed to death while waiting at a bus stop in south London. The English legal system had failed to bring his killers to justice. Clearly as a result of this incidence, a judicial inquiry was set up with a former High Court judge Sir William Macpherson presiding over it and the Macpherson Report was published in 1999. Here a series of recommendations were made to demonstrate an attempt to balance concerns about due process and crime control. The most radical recommendation in this respect was in relation to the ancient principle of ‘double jeopardy’(which essentially provides that once a conviction or acquittal has been made, the case cannot be reviewed to change the charge, i.e. a person cannot be charged/ tried for the same offence twice) which is another feature of the due process model. On the original charge against the three white accused’s the judge ruled that there was insufficient evidence to proceed and ordered the jury to acquit the three men. The Macpherson report recommends that the Court of Appeal should have the power to permit a new prosecution after acquittal where ‘fresh and viable’ evidence is presented. Because of this concern with error, the due process model also rejects the crime control obsession with finality. There must always be a possibility of a case being reopened to take account of some new fact that has come to light since the last public hearing. Thus, unlike crime control, the due process model insists on the prevention and elimination of errors to the greatest extent possible as an end itself: ‘the aim of the process is at least as much to protect the factually innocent as it is to convict the factually guilty.’ Runciman Royal Commission (1993). The due process model is also concerned with the upholding of moral standards for their own sake. Thus, due process adherents insist that the legal system does not benefit from its own illegalities as a result of abuse of power. Here Professor Zander in the Hamlyn Lectures published as The State of Justice (2000) noted that previously the Court of Appeal had the power to quash a verdict if it was unsafe or unsatisfactory. The revised formula in the Criminal Appeals Act 1995, sec 2 now provides for the verdict to be quashed if it is found merely to be unsafe. It is his view that the change raises a fundamental ethical question. This is on the premise that if there are sufficiently sound evidence to convict the accused despite the fact that the prosecution had acted in a procedurally improper manner, then the Court of Appeal does not have jurisdiction to quash the conviction on the basis that it is safe. This was the premise upon which the majority of the Royal Commission upheld their views. According to Professor Zander the Court of Appeal must be free to express its repugnance for especially objectionable conduct of the police or other prosecution agencies. It is not sufficient to say that prosecution misconduct can be dealt with by disciplinary action since even if that occurred, which too
often is not the case. Hence, Zander believes that the integrity of the criminal justice system is a higher objective than the conviction of any individual. This is the essence of a due process model. The due process model also upholds the ideal of equality –that everyone should be placed in the same position as regards the resources at their disposal to conduct an effective defence of a criminal charge. It would be unjust for defendants to be left at a disadvantage merely because they were too povertystricken to secure adequate advice and representation. For example, under the due process model, where a client cannot afford legal advice and services, the system provides public funds to those who cannot afford such services. Is the English criminal justice system one of a due process model or one of a crime control model? The English criminal system, just like that of the United States, is usually characterized as one which emphasizes adversarial procedures and due process safeguards. However, what is objectionable, is the manner in which the due process safeguards are applied. For example, the application of the caution and the privilege against self-incrimination (right of silence) entails that the prosecution must prove guilt and the suspect need not co-operate in this process. Only if there is ‘reasonable suspicion’ can coercive powers be exercised to arrest and search the suspect. On arrest the suspect is generally taken to the police station and detained. This requires further due process justification, because civil liberties are further eroded by lengthy detention and its associated procedures, such as interrogations, search of the suspect’s home and fingerprinting. Further forms of due process protection become appropriate. The right of silence continues, bolstered by a right to legal advice, a right not to be held incommunicado and other procedural safeguards. In order to charge a detainee, further evidence is required and further protections are provided – vetting of the case by the Crown Prosecution Service and a grant of legal aid to prepare a defence. In order to convict there must be yet more evidence (proof beyond reasonable doubt).
Page119 And so, at each stage, as a citizen becomes in turn a suspect, a detainee, an accused and a defendant, the due process requirements become more stringent. However, it is submitted that this portrayal may only be rhetoric and theoretical. Since in practice, the miscarriages of justice would demonstrate that the safeguards imposed by the due process model has been allowed to deteriorate by every key player in the administration of the criminal justice system – the errors begin with the police, then it is perpetuated by the prosecutor and defence counsels which is in turn exemplified by the judge and the jury in the deliberation of the fate of the accused. Finally, the appellate courts further exhibit significant errors which ultimately demonstrates that justice ignored is justice denied. Hence the debate here is whether the criminal justice system is in a state of flux and the pendulum has swung too far in the direction of the crime control model which suggests that
the due process safeguards have been eroded and the traditional objectives of the system is no longer in modern times prevalent despite the changes which have been made by various Parliamentary enactments to curtail the potential abuses of the system. Thus, for example, a key examination focus here is as follows: THESE ARE QUESTIONS ON THE ADVERSARIAL & INQUISITORIAL SYSTEMS TOGETHER WITH THE VALUES OF DUE PROCESS AND CRIME CONTROL. WHETHER THERE HAS BEEN A BLURRING IN DISTINCTION BETWEEN THESE SYSTEMS AND VALUES WHICH HAVE CONTRIBUTED TO THE MISCARRIAGES OF JUSTICE. IS THERE SUCH A CONFLICT AND IF SO WHAT DOES IT DEMONSTRATED? WHAT SHOULD BE THE IDEAL SYSTEM? To what extent are miscarriages of justice the result of fundamental conflicts in the values underpinning the British criminal justice system? What would an ideal criminal justice system look like? How does the current system in England and Wales compare with that ideal? (2009, Question 6, Zone A & B) Critically analyse at least two models of criminal justice. To what extent does the use of such models advance our understanding of the criminal justice system. (2008, Question 6(a) Zone A) ‘Are rights sufficiently protected in the criminal justice system? (2008, Question 6(b), Zone A & B) ‘Criminal justice is systematically biased against the defendant. Its primary goal is crime control rather than due process.’ Discuss. (2007, Question 5(a), Zone B) Are the values of due process sufficiently observed at present in the English criminal justice system?’(2004, Question 6(b), Zone B) “Miscarriages of justice are evidence of individual misconduct or fundamental conflicts of values underlying British criminal justice.’ (2002, Question 4(b), Zone A & B) ‘Recent miscarriages of justice can be understood as drawing attention to a conflict of fundamental values within criminal justice.’ (2001, Question 7(a), Zone A)
The Crisis In Criminal Justice. In order to assess the extent of the miscarriages of justice and the significance of reform introduced, it is essential to consider some of the prominent cases in this regard. The list of such cases may begin with the Guildford Four and the Maguire Seven. The Guildford Four (1975) (consisting of Hill, Richardson, Conlon and Armstrong) were convicted of pub bombings on behalf of the IRA in Guildford and Woolwich. An appeal again conviction failed in 1977 despite the fact that other IRA defendants awaiting trial had by then claimed responsibility. However, other new evidence was eventually amassed which convinced the Home Secretary to order further investigations and a referral back to the Court of Appeal. Once it was discovered that detectives in the
Surrey Police involved in the case had fabricated evidence suppressed possible exculpatory evidence, the DPP decided not to contest the convictions, which were quashed in 1989. This outcome immediately prompted reconsideration of the Maguire Seven case (1976). Suspicion first fell on the Maguire household when Gerard Conlon (one of the Guildford Four) made statements to the police that his aunt, Anne Maguire, had taught him to manufacture bombs. The police raided the house, and convictions were obtained mainly on forensic tests which were said to show traces of nitro-glycerine. The Court of Appeal, on a reference back in 1990 grudgingly overturned the convictions because of the possibility that third parties had left the traces in the house and so caused innocent contamination (the non-disclosure of evidence was also a material irregularity in the case). However, the May Inquiry’s Interim and Second Reports on the Maguire case more realistically cast doubt on whether the tests used and circumstantial evidence could in any event be taken to be conclusive proof of the knowing handling of explosives.
Page120 The next blow to confidence in the criminal justice system was the Birmingham Six case in 1991. The six (Hill, Hunter, McIlkenny, Power, Walker and Callaghan) had been convicted along with three others of bombings in two Birmingham pubs in 1974. The attacks had caused more deaths than any IRA incident in Britain and were the signal for the passage of the Prevention of Terrorism Acts. The prosecution evidence rested upon three legs: confessions which the accused claimed had been beaten out of them; forensic tests which the accused claimed were inherently unreliable and had been performed unsatisfactorily by Dr Skuse; and highly circumstantial evidence, such as links to known Republicans, their movements and demeanour. After being refused leave to appeal in 1976, the six ploughed a furrow in the civil courts by way of a claim for damages for assault against the police and prison warders. However, their path was eventually blocked by the House of Lords as an abuse of process, since any civil victory would undermine the finality of their criminal conviction. Their focus then switched back to the criminal courts, and their new evidence was referred back to the Court of Appeal in 1988. The Court was then unpersuaded, but further revelations about the police fabrication of statements and new uncertainties about the quality of the forensic tests eventually resulted in their release in 1991. That outcome was swiftly followed by the establishment of the Royal Commission. The next Irish-related case of relevance is that of Judith Ward, who was convicted in 1974 for delivering the bombs which resulted in 12 deaths on an Army coach travelling along the M62 in Yorkshire. The conviction was once again undermined by the unreliability of the forensic evidence and of the confessions she made (though this time more because of her mental instability than because of police mistreatment of her). In the background were allegations of non-disclosure. Ward’s case was referred to the Court of Appeal unilaterally by the Home Office, and she was released in 1992 after the prosecution declined to contest the matter. The Court’s judgment was particularly censorious of the non-disclosure of evidence by named forensic scientists and prosecution counsel.
The final case arising from Irish terrorism concerns the Armagh Four (Latimer, Allen, Bell and Hegan). The four co-accused were members of the UDR who were convicted of the murder in Armagh city of Adrian Caroll, whom they believed to be active in the IRA. Their allegations of injustice arose from three main concerns. First, Latimer pointed to conflicting identification evidence and to oppressive treatment during his police interrogation. Further, it was shown that the police had tampered with the confessions by rewriting some notes, deleting references to requests to see solicitors and attaching false authentications. After referral back to the Court of Appeal in 1992, Allen, Bell and Hegan were all freed on the basis that the police had indeed tampered with the evidence, but Latimer’s conviction was not overturned in the light of the identification evidence against him, his confirmation of his admission at the original trial in 1985 and the finding that he had lied to court. There are lastly various recently recognized miscarriages which do not relate to Irish terrorism. Most of these cases arise out of the business of the West Midlands Police Serious Crime Squad, whose activities have given rise to 91 complaints about beatings, the fabrication of evidence and denial of access to lawyers. Such examples of cases being as follows: R v Khan (1990); R v Edwards (1991); R v Wellington (1991) and R v Lynch (1991) – some of those affected have been released. An investigation into the conduct of the police resulted in the disbandment of the Squad in 1989 but no conviction. Another relevant case is that of the Tottenham Three (1991) (Silcott, Raghip and Braithwaite) who were convicted of the murder of PC Blakelock during the Broadwater Farm riot in 1985. On a referral back to the Court of Appeal in 1991, it was accepted that notes of the interview had been altered in the case of Silcot, that Raghip’s confession was negated by his mental state and that Braithwaite had been unfairly denied a lawyer. Release after an even longer period of imprisonment was also ordered in the case of Kiszko (1992). His conviction for murder was accepted as unsustainable in the light of the medical evidence that he was unable to produce the sperm found on the victim. The handling of this evidence by prosecution counsel also gave rise to concern.
Page121 The next entry in the catalogue concerns the Darvell brothers (1992), who had been convicted on the Swansea Crown Court in June 1986 of murdering the manageress of a sex shop. Their conviction were overturned after an uncontested appeal in 1992. Evidence was then presented that police notes about the investigation and confession had been redrafted at a later date, that police witnesses who had identified the brothers as being in the area of the murder at the crucial time were in fact nine miles away, and that fingerprints evidence at the scene of the crime which pointed elsewhere was not disclosed to the defence, was not fully investigated and was even destroyed before the trial. Finally, the convictions in 1990, of the Cardiff Three for the murder of a prostitute were overturned in December 1992 on referral to the Court of Appeal. (Case is referred to as R v Paris, Miller, Abdullahi) The Court expressed itself as horrified by evidence of oppression from the police interview tapes.
The Common Forms of Miscarriages of Justice in Practice The Justice Report on Miscarriages of Justice highlighted five common threads which ran through most of the allegations made over the years: wrongful identification, false confessions, perjury by witnesses, police misconduct and bad trial tactics. The Runciman Commission is based upon terms of reference which focus upon the following: the conduct of police investigations; the role of the prosecutor; the role of experts; the arrangements for defence; statements by the accused and the right to silence; the powers of the courts and directing proceedings; the role of the Court of Appeal; and arrangements postappeal. The most common themes of miscarriages are centred upon the treatment of suspects/accused’s in breach of rights. (i) The most obvious danger is the fabrication of evidence. It has been recognized for some time that informers which are co-accused may well have self- serving reasons for exaggerating the role of the accused; the police are also in a powerful position to manipulate evidence, for example by ‘verballing’ the accused – inventing damning statements or passages within them. The Birmingham Six, Tottenham Three, Armagh Four, Darvell brothers and several West Midlands cases all involve allegations along these lines. (ii) Both the police and lay witnesses may prove to be unreliable when attempting to identify an offender. This had been recognized by the Criminal Law Revision Committee and the Devlin Committee of Inquiry set up following the case of Dougherty though the implementation of the Committee’s recommendations in Turnbull leaves much to be desired. (iii) The evidential value of expert testimony has also been over estimated in a number of instances, only for it later to emerge that the tests being used were inherently unreliable, that the scientists conducting them were inefficient or both. The Maguire Seven, Birmingham Six and Ward cases all fit into this category and are closely related in terms of the techniques used and the technicians using them. (iv) A further issue may be the non-disclosure of relevant evidence by the police or the prosecution to the defence. The investigation of a case is by and large reliant on the police – they speak to all possible witnesses and arrange for all manner of forensic testing. The defence have neither the financial resources to undertake such work nor the opportunities in terms of access – indeed, approaches to prosecution witnesses might well be construed as attempts to pervert the course of justice. Yet several cases – the Guildford Four, Maguire Seven, Darvell brothers and Ward in particular – demonstrate that the police, forensic scientists and prosecution cannot be relied upon fairly to pass on evidence which might be helpful to the accused, despite there being no other agency which might uncover it in the interests of justice. (v) The conduct of trial may produce miscarriages. For example judges are sometimes prone to favour the prosecution evidence rather than acting as impartial umpires, as is alleged in connection with the Birmingham Six. A failure to appreciate the defence’s submissions either in law or fact can result in unfairness in their rulings or directions to the jury as in the Maguire Seven case. Equally, it must be
recognized that defence lawyers are not always without reproach. Lack of legal aid funding has made defence work the Cinderella service of the criminal justice system, so it is not surprising that the quality of defence lawyers is not always as good as it should be. Furthermore, the accused choose (or more likely assigned) lawyers at their own risk. Thus in R v Ensor (1989), the Court of Appeal said that defence counsel must be flagrantly incompetent before the court will overturn a conviction, not just unwise or mistaken.
Page122 (vi) The next problem concerns the presentation of the accused in a prejudicial manner. An insidious way of achieving this effect is the pejorative labelling of them as ‘terrorists’. Similarly, the obvious and heavy-handed security arrangements accompanying trips to court and the accused’s quarantined appearance in the dock inevitably convey an impression of guilt and menace. These problems could be alleviated by advice to the media and by different physical arrangements in court, but little has yet been done. Prejudice can also arise through comments on the case. The law of contempt may temper excessive behaviour, but the courts should be more concerned about securing a fair trial rather than punishing comtemnors. At least in the case of the Winchester Three (1991) comment did result in the overturning of convictions. However, the commoner response is largely to ignore the possible effects of publications on the fairness of the hearing. This issue arose on the appeal of those convicted in the Brighton bombings: R v Anderson(1988) (vii) There are then the problems associated with appeals and the procedures thereafter. Common difficulties include the lack of access to lawyers and limited legal aid funding, so there has to be reliance on extra-legal campaigns which may or may not be taken up by the media dependent upon factors which have little to do with the strength of the case. The Court of Appeal has made life even more difficult because of its interpretations of the grounds for appeal. Once the courts are exhausted, complainants must rely upon a ramshackle and secretive review by the Home Office officials rather than an open and independent inquiry. (viii) Lastly, a miscarriage can occur through the failure of State agencies to vindicate or protect rights, or through laws which are inherently contradictory to the concept of individual rights.
THESE ARE THE REFORM-TYPE OF QUESTIONS. Miscarriages of justice in criminal justice result from the complexity of the system and conflicting pressures; no amount of reform will eradicate them.’ (2008, Question 6(a) Zone B) ‘There are two types of miscarriage of justice and prior to 2003 all of the emphasis was on avoiding conviction of the innocent.’ (2007, Question 2(a), Zone A)
‘The response to miscarriages of justice in the English Legal system has been too little, too late.’ (2003, Question 1, Zone A) ‘Reforms in criminal justice are cosmetic. They do not go to the real reasons for miscarriages of justice.’ (2003, Question 1, Zone B) ‘British justice is in ruins...it is less that the police and lawyers have corrupted themselves as the system has corrupted both of them.’ Have subsequent changes to the criminal justice system made miscarriages of justice less likely? (2001, Question 6, Zone B) The Potential Reforms In Relation To The Miscarriages of Justice (A)The Runciman Royal Commission on Criminal Justice (1993) The Commission was set up within minutes of the Birmingham six walking free as there was a clear feeling in government circles that fundamental reforms should no longer be avoided. The initial observations which could be made of the Commission are that it did not think that it was under an obligation to restore public confidence. It was widely accepted that it would focus on the safeguards and reforms needed to protect better against miscarriages of justice. It is submitted, that these expectations proved false is partly attributable to the way in which the government set its terms of reference. These required the Runciman Commission ‘to examine the effectiveness of the criminal justice system in England and Wales in securing the conviction of those guilty of criminal offences and the acquittal of those who are innocent, having regard to the efficient use of resources. It would have been open to the Runciman Commission to reject the implication in these terms of reference that all three of these matters are of equal weight. Instead it embraced this notion wholeheartedly.
Page123 In particular, it was to consider whether changes were needed in the conduct of police investigation and the extent to which they were controlled by senior officers; the role of the prosecutor and the extent to which he or she disclosed evidence to the defence; the role of expert witnesses and their relationship with the police; legal advice for defendants; the defendant’s ‘right to silence’; the possibility of giving the courts an investigative role, particularly when faced with uncorroborated confession; the role of the Court of Appeal in considering new evidence and the extent to which it should investigate allegations itself; and the arrangements for investigating alleged miscarriages of justice. Thus, for example, it saw miscarriages of justice as comprising both the conviction of the innocent and the acquittal of the guilty. Because it regarded these matters as of equal concern, it saw no problem in recommending changes to the system which would both undermine the adversarial system and substantially increase the likelihood of innocent persons convicted. For the Runciman Commission, these costs were more than offset by the prospect of convicting more of the guilty at a value for money
price. It is this crude cost-benefit analysis that lay behind its proposals to abolish a defendant’s right in either-way cases to elect trial by jury and to introduce systematic plea bargaining. It can be therefore, argued that to some extent, then, the Runciman Commission has simply made a value choice, expressing a preference for more crime control and less due process. It can also be criticized for having not commissioned any research for example, in relation to plea bargaining when it concluded that the inhibitory aspects of the Turner rules should be abandoned for the sake of greater efficiency. Further, it failed to commission any research on the quality of justice of the magistrates’ courts in disposing of the vast majority of criminal cases. Yet, it sought to ensure, through its attack on the right to trial by jury, that more cases would be heard by the magistrates. It can thus be demonstrated that the Runciman Commission’s views were based on stereotypes and prejudices as much as on hard evidence. Thus, it declares a belief without any supporting evidence or argument, that clear articulation of the sentence discount principle would not increase the risks of the innocent pleading guilty. The Runciman Commission was of the view that most of those electing trial by jury eventually pleaded guilty and it assumed that defendants were just wasting time and money by delaying their pleas until the last minute. It must be observed at this stage, that the late plea changing in the Crown Court is predominantly the product of a system that simultaneously proclaims the right of defendants to call upon the prosecution to prove its case before judge and jury whilst doing its utmost to ensure that the vast majority waive that right. Clearly, the Runciman Commission was employing a crime control line of reasoning that guilty persons will take advantage of the due process protections in order to further their own interests and seeking to avoid their just deserts, is not borne out by research findings on the criminal process. This is regrettable, since defendants do not commonly play the system; the system plays with them, their rights and their freedom. The Runciman Commission prepared questions and invited answers to these questions from important agencies of the government and the legal profession as to their suggestions in relation to potential reforms. The Home Office evidence in this regard pointed out that somebody who is being questioned about a serious fraud no longer has the right to silence, although anyone accused of murder or terrorism can refuse to answer questions. The Home Office also suggested that in future all suspects can be questioned before trial by an examining magistrate and if they refuse to answer it would count against them. Another suggestion which the Home Office officials were keen to promote involved DNA profiling – genetic fingerprinting. This is seen as a valuable way of identifying suspects in rape and murder cases, but it is feared that guilty people may go free because the police have no power to force anyone to give a blood sample for testing. The police in their submission called for a more inquisitorial pre-trial procedure, although this would be followed by the familiar accusatorial trial. The police also was of the view that the defendant’s right to
silence was an impediment to the search for truth: they believed the courts should be permitted to draw inferences from the defendant’s refusal to mention a fact he relied on at the trial. In that way a person’s silence could amount to corroboration. The police also suggested that the defence should provide advance disclosure the prosecution in order to secure a more open and fair trial without them being ambushed in court.
Page124 On the other hand, there were also submissions suggesting that the present rules governing prosecution disclosure were too vague. It was suggested that the defence should be given an automatic right to see unused material held by the prosecutor; the defence would then have an additional right to material relevant to specific issues they have defined. The Crown Prosecution Service’s concern was that there were still cases since the pub bombing cases of the 1970’s where the rules governing police procedures are deliberately ignored and in which evidence is fabricated. Also, there were still cases in which improper investigative practices have occurred in an attempt to secure a conviction. Hence, it was the CPS’s contention that the police will need to submit a much wider range of cases to them for advice before making a decision to charge the defendant. The CPS also suggested that there should be a new court, under the Court of Appeal, to advice on the credibility of any fresh evidence. It would have specialized assessors and it could order new investigations. The Law Society gave its support to the idea of an independent review body, made up of lawyers and lay people, which could arrange for cases to be reinvestigated and decide whether there was enough new evidence for the Court of Appeal to order a new trial before a jury. The defendant could appeal to the review body as soon as he had been convicted in the Crown Court; he would no longer need to ask the Court of Appeal for leave to challenge his conviction. Amongst the much wider grounds of appeal proposed by the Law Society would be poor legal advice by defence lawyers; witnesses not called at trial; and insufficient disclosure by the prosecution. The Home Secretary would no longer have any part to play in the criminal justice system. The Law Society also suggested, perhaps rather optimistically, that a continuous sound and video recording should be made of the police officer responsible for prisoner’s custody at the police station. The aim would be to ensure that suspects were not persuaded into waiving their right to free legal advice. The solicitor’s professional body also called for more ethical interviewing by the police, aimed at fact-finding rather than confrontation. And defendant’s would keep the right to silence. But confessions would not have to be corroborated by other evidence. The Law Society gave no support to the Continental idea of an inquisitorial system of justice. It said the present adversarial system was fairer because of the central role played by the independent defence lawyer. The barristers also believed that the adversarial system was more likely to achieve the right
verdict and was more acceptable to those watching or taking part in the trial. But in complicated cases, they saw more merit in having an examining magistrate, though this proposal was not developed in any detail. The barristers also called for reform of the system of criminal appeals. To restore public confidence, the barristers called for an independent body with new powers to investigate alleged miscarriages of justice. It would refer cases back to the Court of Appeal if fresh evidence suggested the defendant had been wrongly convicted. The barristers strongly supported keeping the existing right to silence. They were worried about the risks of false confessions and believed special rules were required for dealing with police evidence because of the danger that police officers may tell lies. Police evidence, they suggested, should no longer be admissible unless there was some independent confirmation of it. But the Bar saw merit in the Scottish system of questioning a suspect before a judicial officer. The suspect would not have to answer questions but he would no longer be able to ambush the prosecution in court; it could count against the defendant to give an answer at trial which he or she had failed to give at the initial hearing. The Criminal Bar Association said that the admissibility of a confession should not depend on corroboration being available. The London Criminal Courts Solicitors’ Association agreed that uncorroborated confessions should not be ruled out automatically. They suggested the police should carry pocket tape recorders to record what was said before and after an arrest. And video cameras could be used where police raid premises to search for drugs or stolen property. The solicitors favoured an ombudsman to investigate alleged miscarriages and a court of last resort to hear appeals. The National Council for Civil Liberties – now known as Liberty – was also against adopting an inquisitotial system in England and Wales. Not surprisingly, it favoured keeping the right to silence. It also held that is should not be possible to convict on confession evidence alone; independent corroboration would be needed. One other unusual question posed by an individual member of the Royal Commission, was whether the dock should be abolished – as it has been in the United States. The Law Society said that this is worth considering so long as there was no risk of the defendant escaping and injuring somebody. The Bar said firmly that the dock should be abolished. However, the Bar acknowledged that some special arrangements will have to be made for those defendants who are security risks but those arrangements should not involve a dock. The police and the Crown Prosecution Service saw no advantage in doing away with the dock. Removing the dock would cost money and damage security. Further, removing the dock would undermine the seriousness and dignity of the court room.
Page125 E. REMEDIES IN THE FORM OF THE APPELLATE REVIEW/STRUCTURE
It was against this background, that Douglas Hurd, the then Foreign Secretary, stated that the criminal justice system and the way in which it handles cases turned out to be inadequate and his solution was equally radical. According to Mr.Hurd, the Home Secretary should no longer decide whether a case should be reopened. Instead, the power should be given to an independent body outside the political function. The new tribunal would have the power to investigate alleged miscarriages of justice and the right to refer cases direct to the Court of Appeal. It is submitted in criminal justice, as in all other processes, a balance has to be struck between guarding against error and facilitating efficiency. Herein lies the crux of the debate in relation to miscarriages of justice. Whilst in rhetoric the criminal justice system is always looked upon with reverence as upholding the hallmarks of justice but in reality, this balance is difficult to attain and error has to be anticipated and procedures established for their identification and correction. Thus, for example, the imposition of controls on the police and the provision of rights to suspects and defendants are, at least in part, attempts to guard against error. Hence under the due process model, it is accepted that errors are undeniable and for these reasons there must be easy access to appeal procedures. The due process model accepts that maintaining public confidence in the system is important, but argues that the way to achieve this is for the system to demonstrate its willingness to own up and correct error. The exclusionary remedy, which operates at the trial stage, can serve this purpose so as to remedy errors at the earliest possible stage, thus removing the need to appeal. Thus, for example, errors that affect the reliability of evidence (such as uncorroborated confessions obtained through oppressive interrogations) must be corrected by the trial judge ruling that evidence inadmissible. But even where the evidence obtained unlawfully is shown to be reliable, exclusion must still follow, since this is the only way that the system can uphold its own integrity and remove the incentive for the police to break the rules. In the due process and crime control models, it is accepted that errors are likely to occur and the need for some form of appellate review is necessary. However, the crime control model in its determination to ensure certainty and finality within the criminal process, is not in favour of appeals unless the case demonstrates clearest grounds for complaint. In the due process system, it can be seen that unrestricted access to the appeallate procedure/review is encouraged. In England and Wales, there are three possible modes of appeals: (a) Appeals from the magistrates’ courts: either by way of rehearing to the Crown Court or by way of case stated to the Divisional Court of the High Court or judicial review; (b) Appeals from the Crown Court to the Court of Appeal; and (c) Petitions to the Home Secretary. The relevant considerations here in relation to the miscarriages of justice is as a result of the restrictive approach of the Court of Appeal, combines with the caution shown by the Home Office in dealing with petitions, has led to calls for reform. Hence the call for some extra-judicial tribunal or commission to be set up to consider alleged miscarriages of justice, although there is less agreement on the composition
and powers of such a body, and on its relationship with the Court of Appeal. The Runciman Commission recommended that a Criminal Cases Review Commission(‘CCRC’) or Authority should be set up to consider alleged miscarriages of justice, to supervise their investigation if further inquiries are needed and to refer appropriate cases back to the Court of Appeal. As with the current reference procedure, the new body would only review Crown Court convictions, not the larger category of miscarriages of justice arising from magistrates’ courts trials. J.Wadham, in ‘Unravelling Miscarriages of Justice’* 1993+ 143NLJ and P Thornton, in ‘Miscarriages of Justice: A Lost Opportunity’*1993+Crim LR 926 were of the opinion that the Commission’s initiative here was conservative in nature. Some of the flaws identified are that the CCRC would rely on the police to carry out any necessary investigation and it need not have to disclose the report produced by the police and its decision should not be subject to appeal or judicial review. Further, legal aid should not be made available during the period in which the CCRC is investigating a case. The CCRC would also lack the power to take cases of irs own motion. And when referring cases to the Court of Appeal it would have no power to make recommendations as to outcome. Hence Thornton in his article was of the opinion that apart from being independent of the executive, the Commission is seriously flawed. However, other critics have opined that the question of independence may also be challenged as being unreal, in the light of the Runciman Royal Commission’s recommendation that the members of the CCRC be appointed by the government.
Page126 Criminal Cases Review Commission It is essential to consider whether the CCRC which was set up in 1997 is fit for its purpose today in fulfilling its important role as effectively as it should be as a result of its poor track record in recent years. It has been alleged by Bob Woffinden in The Guardian.co.uk(30th Nov. 2010) that the CCRC when it was set up it was an experiment. It was an idea unique in worldwide criminal justice: an extra-judicial body that could give another chance to cases that had reached the end of the legal road. The time has now come to acknowledge that it was experiment that failed. The CCRC was set up because of wrongful convictions in major cases, especially murder cases that were being rejected at the Court of Appeal. However, recent statistics reveal that the successes which the CCRC attests are for the commission of relatively lightweight convictions which are overturned. Further, there is the case of Russell Causley whose case was referred to appeal in 2001. His conviction was quashed at appeal, but the court ordered a retrial and Causley was reconvicted after he persuaded the CCRC to reopen his case. The CCRC also refers cases to the Court of Appeal on the basis of sentence and where it is subsequently varied, the CCRC considers that as a success but inaccurately marks it down as quashed case and a success. It also counts cases as a success where alternative convictions are substituted, for example manslaughter for murder. It is submitted that this may be a little more than a technical adjustment to the conviction and may make no practical difference to the liberty of the prisoner.
In its early years, the CCRC was valuable and productive. There was a build-up of compelling cases, some of which had been part-worked by the Home Office and the CCRC began with an altruistic impulse and some highly motivated commissioners. However, since the start of 2005, the CCRC only successfully referred seven cases to the Court of Appeal. For example, in the case of Sean Hodgson, the legal team in charge of the case actually bypassed the CCRC and took the case to the police and the prosecution who discovered that the DNA on the victim’s body was not Hodgson’s and said that the appeal would not be contested. But yet the CCRC recorded this as one of their successes and this goes to question the performance level of the CCRC. Another was that of Patrick Nolan which was a confession made under duress case, of the kind that the appeal court had been quashing for at least 10 years now. Any competent body would have dealt with it in a couple of months but the CCRC took 5 years to deal with the case. Then there was the case of Andrew Adams which took the CCRC 7 years to refer. Further, there have been referrals which failed at appeal such as Michael Attwooll and John Roden ; Robert Kennedy ; and David Shale. Even worse are the situations where cases such as Jeremy Bamber, Susan May, Mark Stonerseed, Warren Slaney etc predate the CCRC and, all these years later, are still awaiting resolution. It is submitted that the CCRC is taking far too long to evaluate cases and it is not referring cases which it should and in the event where it does refer cases, the poor case analysis leads to poor appeals. Another criticism which can be advanced in relation to the poor quality of the services of the caseworkers entrusted with the responsibility is that they lack experience with miscarriages of justice cases. There has been no improvement in the standards of the investigation as of date.
Page127 THESE ARE QUESTIONS ON THE CRIMINAL CASES REVIEW COMMISSION IN TERMS OF ITS PURPOSE AND VALIDITY TODAY. ‘The establishment of the Criminal Cases Review Commission in 1995 was an important step in preventing miscarriages of justice.’ (2007, Question 5(b), Zone B) Discuss the reasons for the establishment of the Criminal Cases Review Commission and evaluate its success to date. (1999, Question 7, Zone A) ‘The establishment of the Criminal Cases Review Commission is certain to reduce miscarriages of justice in the future.’ How far do you agree with this statement? (1999, Question 7, Zone B)
(B) The Criminal Justice and Public Order Act 1994(‘CJPOA) The CJPOA 1994 received Royal Assent on 3 November 1994. Many of the recommendations in the Runciman Royal Commission Report were accepted by the government and are now implemented in the
CJPOA 1994. Examples are the replacement of committal proceedings, reform of the law relating to juries and the significance of guilty plea to sentencing, the abrogation of requirements for corroboration warnings and the broadening of police powers to take intimate and non-intimate samples with a view to establishing DNA databases. Two matters which stand out in making comparisons between the Royal Commission Report and the 1994 Act are as follows: (i) The first is the absence from the 1994 Act of what many regard as the central proposal of the Commission, which is the setting up of a Criminal Cases Review Commission; in its Consultation Paper in 1994, the government announced its acceptance of the Criminal Cases Review Commission which would be established by law. It was anticipated that it would be modelled on the Police Complaints Authority, with lay and legal members and that it would use police teams to carry out investigations into the alleged miscarriages of justice. The results of such investigations in individual cases would then be made available to the Court of Appeal. When the Consultation Paper was issued the Home Secretary promised a speedy implementation but there was no mention of it in the Queen’s Speech in November 1994. More recently still the government has declared its continuing commitment to set up a review body, but no details of what is proposed have yet emerged. (ii) The second striking diferrence between the Royal Commission’s report and the 1994 Act is in relation to the treatment of the right to silence. The majority of the Commission, backed by the Bar, the Law Society and the Criminal Bar Association believed that the possibility of an increase in the convictions of the guilty is outweighed by the risk that the extra pressure on suspects to talk in the police station and the adverse inferences invited if they do not may result in more convictions of the innocent. Also, the majority were of the believe that the professional criminals who wish to remain silent are likely to continue to do so. It is the less experienced and more vulnerable suspects against whom the threat of adverse comment would be likely to be more damaging. The government, however, preferred the view of the minority of the Commission who accepted the arguments of the police, the Crown Prosecution Service and a majority of judges that it should be possible for the prosecution or the judge to invite a jury to draw adverse inferences from an accused’s silence under police questioning. The government thus proceeded to implement this in Section 34(1) of the CJPOA 1994 and made some concessions in terms of some limitations imposed to the modifications to the right to silence, such as the limitation in Section 34(1)(a) which provides that for an inference to be made, the suspect must have been questioned under caution: R v Johnson(2005) and the fact is one the suspect could reasonably have been expected to mention: Argent(1997) and Condron(1997). Further it is also provided in Section 34(2A) it is also provided that these provisions do not apply to suspects unless they have been allowed to consult a solicitor. It is submitted, that on a practical level, the implementations made in relation to the right to silence may demonstrate a true crime control approach since the limitations are merely tools to mask the real operation of this power by the police; it is thus encroaching on the fundamentals of due process afforded to suspects and at the same time increasing the powers of the police which already exists in
the Police and Criminal Evidence Act 1984 does not assist in the problems concerning the miscarriages of justice. Another objection which can be levelled against the government is the abolishment of committal proceedings in Section 44(1) of the Act may also be a typical crime control approach. By committal proceedings, it means that the examining magistrates are entrusted to assess the sufficiency of evidence against a defendant so as to decide whether the case warrants a Crown Court trial; the abolition was on the premise that in practice this was a mere formality and a cumbersome procedure.
Page128 (c) The Criminal Justice Act 2003(‘CJA 2003’) The concept of miscarriages of justice from a political discourse is evidenced by the passing of the CJA 2003 which emphasizes the intention of criminal trials as being the conviction of the guilty and the acquittal of the innocent as stated by the then Labour Government Prime minister, Mr Tony Blair. Certain long standing safeguards against the wrongful conviction of the innocent has been removed by the CJA 2003. The stated intention of the CJA 2003 is to ‘rebalance’ the criminal justice system so that more guilty offenders are convicted. To this extent, the criminal justice system is undergoing its most radical overhaul for centuries. For example, the CJA 2003 puts an end to the ‘double jeopardy’ rule which for almost 800 years has prevented people from being tried for the same crime twice. The CJA 2003 also introduced ‘hearsay’ evidence into criminal trials, allowing as admissible oral evidence in criminal proceedings which is adduced as evidence of any fact or opinion asserted even though it is not given by the alleged witness live in court: Sections 114(1) (d)(the interests of justice limb) Further, the common law rules governing the admissibility of evidence of bad character in criminal proceedings has been abolished by the CJA in Section 99(1). Hence in criminal trials evidence of bad character is governed today solely by the CJA 2003, Sections 101(a)-(g). Again the analysis surrounds the argument as to whether the extensive provisions in the CJA 2003 is representative of a crime control model and to this extent is there an erosion of the due process fundamentals which operate as significant safeguards of individual liberties.
Page129 Chapter12: SAMPLE QUESTIONS AND MOCK ANSWERS TO THE NEW COMPULSORY QUESTION The compulsory question has two parts: Part A is a series of short questions based on the online legal research exercises and Part B is a reflection question on the research process of producing a research
essay on one of the six questions. The actual essay is not assessed (although you may perhaps be asked to explain your conclusion briefly). Part A 1. When researching journal articles on Westlaw, why might you find abstracts of articles but not always the full text? 2. Which Government department website might you go to look for papers on the creation of a Supreme Court? 3. What do the following abbreviations stand for? a) LQR b) CLJ? 4. In online exercise 1, if you search LexisNexis for Carlill and Carbolic Smoke Ball under ‘case name’ three results are returned but if you search under ‘general search’ 191 results are produced. Why? 5. Why would you expect to find multiple judgments in a report on a case heard in the Court of Appeal? (Answer all questions – total five marks) Answers 1. Because of the Legal Journals Index on Westlaw, which provides abstracts but not full text. 2. Either the Department of Constitutional Affairs or the Ministry of Justice. 3. Law Quarterly Review, and Cambridge Law Journal [Be familiar with the Cardiff Index to Legal Abbreviations] 4. Because searching under case name will only produce the actual case reports, while a general search will produce all instances where the case is referred to in other cases or articles on the whole data base. 5. Because there are multiple judges and it is usual for each judge to deliver a judgment.
Page130 Part B 1. Indicate which research essay you undertook, and: a) list the items you identified as being of relevance to writing the essay
b) explain the research process that gave you the items above and the keywords you used to find the information. Explain any difficulties you faced in finding the information and the steps you took to overcome those difficulties c) reflect on how useful you found the items listed under 1, above according to how relevant, authoritative and reliable they were d) if you were to undertake a similar research exercise tomorrow, what would you do differently? (Complete all sections – total 20 marks) Answers 1. The research question I answered [note this is made up, the actual answer for 2007–8 is one of the six questions as explained in Chapter 5 of the 2007 guide] is: ‘The abolition of the double jeopardy rule for serious offences in the CJA 2003 will prevent miscarriages of justice as evidenced in the failed prosecution of the Stephen Lawrence case.’ Discuss. a) The items I found were: (i) Dennis, I. (2004) ‘Prosecution Appeals and retrials for Serious Offences’, Criminal Law Review (ii) Roberts, P; (2002) ‘Double Jeopardy Law Reform: A Criminal Justice Commentary’, Modern Law Review (iii) The Stephen Lawrence Inquiry-Report, Cm.4262-1 (1999) (TSO, London) (iv) Roberts, P. (2002) ‘Justice for all? Two Bad Arguments (and Several Good Suggestions) for Resisting Double Jeopardy Reform’, Journal of Evidence and Proof (v) Reed, A. (1997) ‘Double Jeopardy Law Made Simple’, Yale Law Journal (vi) Fitzpatrick, B. (2002) ‘Double jeopardy: one idea and two myths from the Criminal Justice Bill’, Journal of Criminal Law (vii) De Than, C and Shorts, E. (2000) ‘Double Jeopardy – Double Trouble’, Journal of Criminal Law (viii) Review of the Criminal Courts of England and Wales (2001), Lord Justice Auld, Chapter 12 (ix) Double Jeopardy– A response to the Law Commission’s Consultation Paper– www.justice.org.uk/images/pdfs/1double.PDF (x) Wikipedia: Stephen Lawrence, http://en.wikipedia.org/wiki/Stephen Lawrence b) My research Process
Firstly, I evaluated the research question and broke it down into its component parts. The question suggested that a miscarriage of justice occurred as a result of a failed prosecution in the case of Stephen Lawrence, and that abolition of the double jeopardy rule would prevent such a miscarriage from happening in the future. Thus, step one in this research is to find out what happened in the Stephen Lawrence case. I typed in the search terms ‘Stephen’ and ‘Lawrence’ in Google and read the Wikipedia entry. The entry provided a full write-up about the case and also provided several links to news articles and publications which provided further commentary and associated facts. After familiarizing myself with the facts of the case, I read academic articles about the change to the double jeopardy rule. Using the online library, I entered the search terms ‘double’ and ‘jeopardy’ in two databases, namely, Westlaw and Lexis Nexis. This provided several articles which shed light on the issues. The bibliography of the articles also highlighted an article by Roberts that was not available in Westlaw and Lexis Nexis. Thus, I emailed the online library and was informed that the relevant article was contained in the Modern Law Review 2002 edition and was available through the Heinonline database. I also used the Westlaw database to access the Criminal Justice Act 2003 to read the provisions allowing the prosecution to bring forward an appeal for a second prosecution of the same offence. Difficulties Faced: My primary problem was that I did not have access to a physical library. The bibliography provided in the academic articles cited several books and articles which seemed to be of direct relevance, but they were not accessible through the UOL online library. They would most probably have been available in a specialist law library. As such, I feel that my research has been compromised in terms of a lack of academic sources. Perhaps I may have come to a different conclusion to the research question if I had been exposed to a larger variety of sources. However, I am realistic about the number of sources I could refer to, bearing in mind the limited length of the research essay.
Page131 c) Reflection on the sources in terms of relevance, authority and reliability Although the Wikipedia entry on Stephen Lawrence was the first point in familiarizing myself with the case, I kept in mind that Wikipedia is an online information site which is edited by a large team of people, not all of whom have been adequately vetted in their expertise in the area. Also, the entries may be added to or adjusted by the public, thus this may render some of the information inaccurate or over embellished. Nevertheless, it was useful in providing external links, especially to newspaper articles which provided journalistic commentary. Note, however, that newspaper commentary articles provide opinions on the issue and seldom give an academic history of the criminal justice concerns which the research question brings up. But the Wikipedia entry and newspaper articles mention the McPherson
Inquiry and the Auld report as the precursor which laid down the path for the abolishment of the double jeopardy rule and as such provided information that led to highly relevant sources for the research. The McPherson Inquiry and the Auld Report can be accessed via the online library and were listed under LLB Intermediate subjects, specifically under the Common law section. The McPherson Inquiry was relevant in showing what went wrong in the Stephen Lawrence case and how the alleged murderers escaped justice due to the double jeopardy rule. The Auld Report provided recommendation as to how the rule would be changed. The Criminal Justice Act 2003 showed how the relevant law had been amended to now allow a second prosecution for the same offence. All the sources accessed so far have been relevant in providing the background context to the research question, but I would need academic opinion in order to form a conclusion. The article by de Than and Shorts was very relevant in providing a detailed background of the double jeopardy rule in the common law. The article traces the justification for the rule and provides a detailed discussion of the common law in which the rule has been invoked. However, as the article was written prior to any change in the rule, it does not touch on any opinion about the changes. The articles by Dennis, Roberts and Fitzpatrick gave very relevant and detailed opinion and academic discussion of how the change to double jeopardy in CJA 2003 was likely to affect jurisprudence in time to come. All three writers were unanimous in their disapproval of the changes wrought by CJA 2003 and their reasons given in the academic discussion were roughly similar. Since their articles were published in reputable academic journals, this made me feel confident in stating in my conclusion that I disagreed with the research question. I also reinforced my conclusion with a commentary from Justice which I had found off the internet in my Google search about Stephen Lawrence. Justice is a leading legal and human rights organization in the UK and they had provided a response to the changes to double jeopardy. This was relevant to back up my conclusion to the research question. Although it was not an academic discussion, it provided reference to how the new law may adversely affect civil liberties in practice. Also, this source provided information as to why the abolition of double jeopardy may not be the correct response to the problems evidenced in the Stephen Lawrence case and this was directly relevant to the research question. d) What would I have done differently? I feel that my research has been thorough given the limited resources. Perhaps if I had discussed my research with my classmates, they may have been able to provide some assistance on where to access further materials. I feel that involving classmates in a study group may have resulted in finding a local library with printed materials that could have provided more information.
Page133 Chapter13: SAMPLE QUESTIONS
CONTENTS: A. Introduction B. Judicial Precedent C. Do Judges Make Law D. Supreme Court e. Statutory Interpretation F. Civil Process and ADR g. Judiciary
A. INTRODUCTION 1. What do we mean when we speak of ‘common law’? Q.12000 (Zone A) 2. What do we mean when we say that the English Legal System is a common law system? Q. 12000 (Zone B) 3. What do we mean when we speak of the ‘common law tradition’? 4. “The rise in importance of legislation over the last 100 years means it is no longer correct to describe the English legal system as a common law system.” Q. 3 2005 (Zone B)
B. JUDICIAL PRECEDENT 1. To what extent are judges bound by precedent and is it desirable that they should be? Question 11998 (Zone B) 2. Could the Court of Appeal depart from its own decisions? What would the advantages and disadvantages of such course? Question 11999 (Zone A) 3. Using examples drawn from at least two cases with which you are familiar, critically evaluate the operation of precedent in the English Legal system.
Question 12000 (Zone B) 4. How much discretion do judges have in their decision-making today? Question 2 2002 (Zone A) 5. Judicial reasoning in case law consists in applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedents... and we are not at liberty to reject them, and to abandon all analogy to them.’ (Mr. Justice Peak, 1833) Does this statement reflect the operation of precedent today? Question 2 2002 (Zone B)
Page134 6. “The doctrine of precedent is the cornerstone of the development of the common law ....The doctrine of precedent is a mysterious process that is incapable of accurate analysis.’’ Explain and reconcile these two statements. Question 5 2003 (Zone A) 7. “The doctrine of precedent has a dual function; it provides an image of certainty, consistency and clarity while allowing the common law to continually adapt and develop.” Discuss. Question 4 2004 (Zone A) 8. “In practice the doctrine of precedent does not contain judicial decision-making; activist judges can always creatively interpret previous cases to reach the outcome they desire.” Discuss. Question 12005 (Zone A) 9. Critically analyze, using illustrations from case law, the advantages and disadvantages of the doctrine of stare decisis. Question 5 2005 (Zone B) 10. ‘... *I+t is necessary for each lower tier, including the Court of Appeal to accept loyally the decisions of the higher tiers’ (Ld. Hailsham of St Marylebone in Broome v Cassell). Discuss this statement in the light of R v James (2006). Question 6 2006 (Zone A) 11. ‘The real risk to the common law is not its movement to cover new situations and new knowledge but [that] it should stand still, halted by conservative judicial approach… If that should happen, and since the 1966 Practice Direction of the House it has become less likely, there would be a danger off the law
becoming irrelevant to the consideration, and inept in its treatment, of modern social problems. Justice would be defeated. The common law has, however, avoided this catastrophe by the flexibility given it by generations of judges.’ Discuss June 2008 – Zone A 12. ‘The law on this topic is judge made; it has been built up over the years from case to case. It is entirely within this House’s duty, in the course of administering justice, to give the law a new direction in a particular case where, on principle and in reason, it appears right to do so. (Lord Wilberforce). To what extent does this statement reflect the reality of case law development? June 2008 – Zone B 13. ‘A rule as to precedent (which any court lays down for itself) is not a rule of law at all. It is simply a practice or usage laid down by the court itself for its own guidance and, as such, the successors of that court can alter that practice or amend it or set up other guidelines, just as the House of Lords did in 1966.’ (Lord Denning in Davis v. Johnson) Discuss. Question 5 2009- Zone A 14. Is the doctrine of precedent best understood as judicial practice or a set of legal rules? Question 5 2009- Zone B 15. `The predominant value of the doctrine of precedent remains the maintenance of judicial authority, rather than that of responding to the needs of justice in individual cases.’ Discuss. Question 7 2010-Zone A 16. `The predominant value of the doctrine of precedent remains the maintenance of judicial authority, rather than that of responding to the needs of justice in individual cases.’ Discuss. Question 7 2010-Zone B
Page135 C. DO JUDGES MAKE LAW 1. ‘‘...there was never a more sterile controversy that that upon the question whether a judge make law. Of course he does. How can he help it?” (Lord Radclife) Discuss. Question 1 1998-Zone A 2. To what extent are judges bound by precedents and is it desirable that they should be? Question 1 1998-Zone B
3. Could the Court of Appeal depart from its own decisions? What would be the advantages and disadvantages of such course Question 11999-Zone A 4. ‘‘It is now probably common place of legal theory that judges do make law. Perhaps the more interesting question is not whether judges make law but why they deny that they do so.’’ Discuss Question 1 1999-Zone B 5. How much discretion do judges have in their decision making today? Question 2 2002-Zone A 6. Do judges make law in developing the common law through the doctrine of precedent? Illustrate your answer with reference to cases. Question 3 2003-Zone B
D. SUPREME COURT 1. EITHER (a) `The role and functions of a court of appeal and a supreme court are different. The United Kingdom has created a Supreme Court in name but not in function; it would be better if no change had been made.’ Discuss. OR (b) `The judiciary is a core institution in a liberal democracy governed by the rule of law. A representative judiciary reflects the idea that all should be able to participate in the small and large decisions that shape the society in which we live. It cannot be acceptable to exclude, or appear to exclude, well qualified candidates.’ Discuss, and assess the extent to which the current selection process in England and Wales achieves a representative judiciary Question 6&72010- Zone A&B 2. `The critics of the Government’s proposals to abolish the post of Lord Chancellor and create a Supreme Court are motivated by blind adherence to tradition rather than a rational analysis of the issues.’ Discuss Question 4 2004- Zone B 3. What are the functions of the judiciary? Does the selection and training process in England and Wales ensure that appropriate people are selected to carry these out?
Question 4 2003- Zone B
E. STATUTORY INTERPRETATION 1. ‘European Community legislation is drafted in a way that requires a purposive approach to its interpretation. This requirement, however, runs counter to the literal approach that is dominant in the English system.’ Discuss Question 2 1998- Zone A&B 2. ‘*The rules of statutory interpretation+ are not our rules in the ordinary sense of having some binding force. They are our servants, not our masters. They are aids to construction, presumptions or pointers. Not infrequently one ‘rule’ points in one direction, another in a different direction. In each case we must look at all relevant circumstances and decide as a matter of judgment what weigh to attach to any particular ‘rule’.” (Lord Reid) Question 2 2000-Zone B 3. ‘These rules and presumptions and maxims *concerning statutory interpretation+ are inconsistent, and often flatly contradict each other, but they are treated in the textbooks and in judgments as having equal validity today, regardless of the differing social, political, and constitutional conditions under which they arose... The result is chaos. It is impossible to predict what approach any court will make to any case.’ D.A.S Ward, 1963. Question 1 2001-Zone A 4. The rules of statutory interpretation are a sham. The only real rule is discretion’ Do u agree? Question 12001-Zone B
Page136 5. ‘Statutory interpretation is difficult because of the indeterminacy of language, but the English judiciary usually reach result that accords with common sense and does not offend our sense of justice. Question 6 2002-Zone A 6. Is the process of statutory interpretation dependent upon the level of activism of individual judges? Question 6 2002-Zone B
7. ‘A good deal is made of the so-called rules of statutory interpretation. But it is not clear if these rules are to be understood as descriptions of how judges interpret statutes, or prescription of how judges ought to interpret statutes. Nor is it clear whether the rule complement, or compete with, one another.’ Question 2 2003-Zone B 8. In what way can the different ‘rules’ of statutory interpretation be understood as forming a coherent process of interpretation, or is any act of statutory interpretation an arbitrary choice by a judge? Question 6 2003-Zone A 9. `A court invokes whichever of the rules [of statutory interpretation] produces a result that satisfies its sense of justice in the case before it. Although the literal rule is the one most frequently referred to in express terms, the courts treat all three as valid and refer to them as occasion demands, but, naturally enough, do not assign any reasons for choosing one rather than another.’ (Willis, 1938) How accurately does this statement reflect the judicial practice of statutory interpretation in England and Wales? Question 6 2004-Zone B 10. EITHER (a) To what extent, if any, has the need to adopt a purposive approach in the interpretation of European Community law influenced judicial approaches to the interpretation of domestic legislation? OR (b) at was the significance of the decision in Pepper v Hart for the judicial interpretation of statutes? Question 2 2005-Zone A 11. `There are no fixed rules for the interpretation of a statute; the process is determined by the politics and activism of the judge.’ Discuss Question 6 2005-Zone B 12. `To analyze the process of statutory interpretation in terms of three “rules” (literal, golden and mischief) is historically out of date. The contemporary process is complex and pragmatic.’ Discuss Question 6&4 2006-Zone A&B 13. EITHER (a) ‘In accordance with the will of Parliament as reflected in section 3 [of the Human Rights Act 1998] it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques to be used will not only involve the reading down of express language in a statute but also
the implication of provisions. A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so.’ (Lord Steyn, in R v A (2001)) Discuss. OR (b) Section 87 of the Environmental Protection Act 1990 states: ‘(1) Any person who throws down, drops or otherwise deposits in, into or from any place to which this section applies, and leaves anything whatsoever in such circumstances as to cause, or contribute to, or tend to lead to, the defacement of any place to which this section applies... shall be guilty of an offence. [One of the categories to which the section applies is a public open place...] (4) ... “public open place” means a place in the open air to which the public are entitled or permitted to have access without payment; and any covered place open to the air on at least one side and available for public use shall be treated as a public open place.’
Page137 The defendant, B, was charged under this section with leaving litter. He left three cards (advertising the services of a prostitute) in a telephone box. The box was enclosed on three sides with a door on the fourth side but had a six-inch gap at the bottom of the box which was open to the air. The prosecution’s case depended on this telephone box coming within the definition of a ‘public open place’. The Trial Judge decided that the telephone box was not a ‘public open place’ under the first part of the definition in s. 87(4) as it was not a place in the open air. He also held that the telephone box did not come within the second part of the definition in s 87(4) as it was not open on at least one side. It had three fixed sides and a door which was normally closed except when anyone entering or leaving the box. The fact that there was a six-inch gap at the bottom was held not enough to bring it within the definition of ‘public open place’. The DPP has requested the legal issues concerning this finding go to a higher court as a case stated. Write an opinion setting out: (a) arguments for the prosecution outlining different strategies to interpretation than used by the Trial Judge, and (b) consider arguments that the prosecution are likely to face in response Question 3 2007 Zone A&B Read the provisions of the following fictitious Act and advice on the situations that follow. The Prevention of Unwanted Parties and Control of Noise Pollution Act 2008 contains the following provisions:
1. This Act applies to a gathering on land in the open air of 100 persons or more at which amplified music is played during the night and which is by reason of its loudness and duration and the time at which it is played, likely to cause serious distress to the inhabitants of the locality. 2. If, as respects any land in the open air, a police officer of at least the rank of Superintendent reasonably believes that – (a) two or more persons are making preparations for the holding there of a gathering to which this Act applies, (b) ten or more persons are waiting for such a gathering to begin there, or (c) ten or more persons are attending such a gathering which is in progress, he may give a direction that those persons and any other persons who come to prepare or wait for or to attend the gathering to leave the land and remove any vehicles or other property which they have with them on the land. 3. It is sufficient for the direction under Section 2 to be communicated to them by any constable at the scene. 4. A direction under Section 2 above does not apply to an exempt person. 5. A person who knowingly fails to comply with a direction commits an offence. 6. In proceedings for an offence under Section 5 it is a defence for the accused to show that he had a reasonable excuse for continuing the music or failing to leave the land as soon as reasonably practicable. 7. A constable in uniform who reasonably suspects that a person is committing an offence under section 5 may arrest him without a warrant and seize any equipment which he reasonably believes is being used or is to be used to play music. 8.Under this Act: “exempt person” means the occupier, any member of his family or his employee or agent of his and any person whose home is situated on the land; “land in the open air” includes a place partly open to the air. 9. If a police officer of at least the rank of Superintendent reasonably believes that circumstances exist which would justify the giving of a direction under section 2 in relation to a gathering to which that section applies he may authorize any constable to enter the land. Advise William, Ian and Curtiz in the following situations whether the police were authorized under the above Act to make the arrests and/or seize equipment.
Page138 1. William, a rich banker holds a party in his garden. Fifty people are invited; 150 turn up. He hires a tent which can hold 100 people and is open completely on one side. He places his music equipment inside. He plays Beethoven and Wagner for four hours from 8pm and then an impromptu Karaoke session begins. All his neighbors are at the party. At 3 am a group of born-again hippies squatting in a nearby field complain to the police that they are suffering severe mental and physical distress as a result of the music. A police constable orders William to shut down the party, William refuses and is arrested. 2. Ian makes his living organizing parties in unoccupied factories or on open sites. He has planned a large event in a public park just inside London. He expects about 3,000 people to attend, coming by car and paying on arrival. The event has been advertised in various London clubs and on pirate radio stations. Ian begins to set up the sound system on his own. The sound system is run from Ian’s laptop computer and the stage is set up underneath a clump of trees to improve the sound quality – the branches of the trees provide a kind of roof over the stage. There are twenty people sitting in the field watching Ian while he is setting up. A police superintendent is informed of the advertising and instructs three police constables to go to the scene. Ian sees them arrive and begins to write a letter to his mother on his lap top. They order him leave the park but he insists he is doing nothing wrong whereupon they arrest him and seize both the sound system, and his laptop computer. 3. Curtiz is conducting a party in a substantial disused barn on a farm of a friend who is abroad on holiday. The barn walls on four sides and a large door that may be closed but the roof has been removed. Curtiz expects about 100 people to attend; 1,000 arrive and crowd inside. A detective constable from the Drugs Squad dressed in a hooded top and combat fatigue trousers, who has tagged along with some of the people who have turned up in the hope of observing drug use, arrests Curtiz. Question 7&8 2008-Zone A&B 14. Complaints that coastal fish stocks were being exhausted by large vessels using sophisticated equipment led to the (fictitious) Inshore Fishing Act 2008. The long title of the Act describing it as ‘An Act to preserve fish stocks, to establish a licensing system, and for related matters’. The Act requires those fishing ‘in the course of a business’ within three miles of the coast (the ‘controlled area’) to obtain a Ministry license and restricts the issue of licenses to those operating vessels under 100 tons. Section 3 makes fishing in the controlled area without a license an offence and the Act also provides: Section 4 any licensee who within the controlled area uses in fishing for sea fish any ring net or similar net commits an offence. Section 5 Any person who for consideration supplies fish caught within the controlled area to any other person, being a person carrying on a business of fishing for sea fish but who is not a licensee under this Act, commits an offence. (a) William, who operates a 1,000 ton ocean-going trawler and is therefore ineligible to hold a license, paid Allen, a licensee, £10,000 on the informal understanding that Allen would give him first refusal on
all his catches. Allen has returned from a fishing trip with a full catch and was looking for William when he was arrested and charged under s.5. (b) Blake takes parties of holiday-makers for trips close to the shore in his motor boat. Part of the attraction is that the trippers receive fish caught by Blake during the trips, using a small net which he operates in much the same way as a ring net but is much smaller and which Blake made for him, since no nets of that size are available for purchase. Upon returning from a trip with 10 passengers and some 19 fish he has been arrested for fishing without a license and for the use of this net. (c) Charles,,, who holds no license, was found pumping fish from a ring net into his 90-ton trawler within the controlled area. He has been charged under s.3, but says that the catch was made outside the controlled area and that his trawler must have been pushed into that area by the weather conditions during the pumping operation. Sea conditions had been unusually stormy for the previous two days with a strong gale blowing towards the land. (d) Advise Allen, Blake and Charles. (You may assume that nothing in the Act conflicts with the United Kingdom’s Treaty obligations.) Question 3 2009- Zone A&B 15. Read the following material concerning the (fictitious) Endangered Species Act 2007 (ESA 2007) and then advise the parties as asked in situations (a) - (d).
Page139 When the Minister for Overseas Aid introduced the ES Bill into Parliament he stated, `This legislation will help protect many of the world’s native species facing possible extinction in their natural habitat by controlling the importation of wildlife and wildlife products into the United Kingdom and by imposing harsh penalties on those who seek to make a profit from trade in endangered species.’ When asked if the legislation would cover the importation of rare breeding fish from a specialized Japanese farm to a carp breeding farm in Scotland, the Minister replied, `The legislation will not cover importation from a specialized breeding farm to another; it is wildlife in its natural state that we are protecting.’ Section 1 of the Act specifies that HM Revenue and Customs (HMRC) may issue a license for (a) the importation of or (b) the possession of any wildlife or wildlife product but that `any license obtained by a false or misleading statement shall be void’. Section 2 makes it an offence for `any person’ to `import or seek to import into the United Kingdom any wildlife or wildlife product unless he has an import license’. Section 3 makes it an offence for `any person to knowingly be in possession in the United Kingdom of any wildlife or wildlife product that has been imported into the United Kingdom unless he has a possession license’. The interpretation clause specifies that for the purposes of the Act
“import” means to bring into or cause to be brought into the United Kingdom from another state; “import license” and “possession license” mean licences issued pursuant to section 1 of this Act; “wildlife” means any animal, bird or fish living in its natural habitat; “wildlife product” means any body part or any skin, fur, hair or other body covering of any wildlife. (a) Tony purchases a belt made from the skin of a very rare snake for his own use by mail order from Taiwan. The seller in Taiwan farms snakes specifically for the purpose of using their skins in the manufacture of clothing accessories that are sold to the general public. The breeding programme at the farm has been so successful that the number of snakes has increased dramatically and the farm now exports live snakes - including the type that the belt is made from - to zoos and conservation schemes in ten countries. Customs intercept the delivery and Tony is charged under s.2. Tony has no license. Advise Tony. (a) Tundi, a renowned figure in Uganda for her work in promoting the cause of protecting endangered species, arranges to make a tour of England to rally support for her campaign. The symbol of her campaign is an elephant’s tusk that was carved over 200 years ago. Tundi arrives in England with the tusk and leaves it in storage at London airport. When she returns to pick it up, she is arrested and charged under s.2. Tundi has no license. Advise Tundi. (a) Stephanie owns a shop in which she sells natural medicines. Her premises are raided by Customs officials and a quantity of traditional Chinese remedies are seized that are shown on analysis to contain small amounts of powders made from dried tiger penis and elephant tusks. Stephanie is charged under s.3. Stephanie has no license. Stephanie claims she does not know that the products contained these powders, but the Customs officials note that accompanying papers written only in Chinese refer to the ingredients. Stephanie does not (b) read or speak Chinese. Advise Stephanie. Question 8 2010-Zone A&B
F. CIVIL PROCESS AND ADR The questions for this topics would be given in volume 2 of CLR book under the civil process chapter.
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G. JUDICIARY 1. ‘Changes on the selection process for the senior judiciary in England and Wales have as yet made no difference to the range of people appointed. In view of the diverse functions of the modern judiciary it is imperative that a more representative judiciary be achieved and reformers may have to rethink again the selection process. June 2008 – Zone A 2. ‘Why should anyone be concerned about the class, ethnic or gender composition of the judiciary? If all the most suitable candidates are well educated males from a particular ethnic and social group then it is not surprising that the judiciary will be males from that group.’ Discuss June 2008 – Zone B 3. In what ways was the establishment of an independent Judicial Appointments Commission in 2006 intended to improve on traditional arrangements for the appointment of the judiciary? Question 6 2007-Zone A 4. What have been the criticisms of the selection process for the senior judiciary in England and Wales and is it likely that the reforms introduced by the Constitutional Reform Act 2005 will meet those criticisms? Question 3 2006-ZoneA& B 5. To what extent will the creation of a Judicial Appointments Commission (currently proposed in the Constitutional Reform Bill) overcome criticisms of the current system of appointing senior members of the judiciary? Question 3 2005-Zone A 6. `Recent cases show that the judiciary are developing the Human Rights Act 1998 far beyond the scope intended by Parliament.’ Discuss. Question 2 2005-Zone B 7. EITHER (a) ‘The critics of the Government’s proposals to abolish the post of Lord Chancellor and create a Supreme Court are motivated by blind adherence to tradition rather than a rational analysis of the issues.’ Discuss Or
(b) The Government is proposing to establish a Judicial Appointments Commission in England and Wales. Why was it thought necessary to reform the judicial selection process and should such a Commission have the power to appoint judges or merely to make recommendations? Question 3 2004-Zone B 8. In what way can the different ‘rules’ of statutory interpretation be understood as forming a coherent process of interpretation, or is any act of statutory interpretation an arbitrary choice by judge Question 6 2003-Zone A 9. What are the functions of the judiciary? Does the selection and training process in England and Wales ensure that appropriate people are selected to carry these out? Question 4 2003-Zone B, Question 3 2002-Zone A&B 10. ‘Judges, both by virtue of their own inclinations and training and because of the status of the judiciary as part of the authority within the state, will tend to make conservative decisions.’ (Marcel Berlins) Question 4 2001-Zone B 11. What, if any, do u see as the weakness of the current system for making appointments to the higher judiciary? How could the system be improved? Question7&52000-ZoneA&B
