Using cases to illustrate, explain how and why the courts make use of the doctrine of judicial precedent and statutory interpretation to resolve points of law.
By Samantha Lewis
Essay plan
Introduction
Judicial Precedent
Judicial Precedent – How It’s Used
Judicial Precedent – How It’s Avoided
Statutory Interpretation – Why it’s needed
Statutory Interpretation – How It’s Used
Conclusion
Using cases to illustrate, explain how and why the courts make use of the doctrine of judicial precedent and statutory interpretation to resolve points of law.
Introduction
The English Justice System prides itself on consistency within the law, this leads to an effective and fair system where justice is seen to be done. To provide consistency the courts need guides and rules to follow, in this essay I will be explaining two forms of doctrine designed to give the courts a strong foundation on dealing with a case; judicial precedent and statutory interpretation.
Judicial Precedent
This is a major source of law, basically it follows stare decisis et non quieta movere which is a Latin phrase that means ‘stand by what has been decided and do not unsettle the established’ this follows the fundamental need for consistency as a judge must follow the decisions of past judges in a higher, sometimes the same, court. Judicial Precedent must be followed by a judge as it is not optional, therefore it is binding, and this ensures consistency and aids the judge in making their judgment.
Judicial Precedent – How It’s Used
At the end of a case the presiding judge will give a judgment, this is a speech giving the decision and outlining the reasons for that decision. The judge must evaluate the principles of law to reach a lawful decision, the judge will explain these principles in the judgment; these principles are called the Ratio Decidendi which in Latin means the reason for deciding. The ratio is what creates the precedent and must be followed by future judges presiding over cases where the facts are similar. Sir Rupert Cross defined the ratio as ‘any rule expressly or impliedly treated by the judge as a necessary step in reaching his conclusion’.
The judgment not only includes the Ratio Decidendi it also includes the Obiter Dicta which in Latin means ‘other things said’. The obiter is not binding but it can help judges reach a decision as sometimes in the obiter a judge will state what their decision may have been if the facts of the case were different, this speculation could be relevant to another judge. It is often hard to separate the obiter and the ratio as a judgment is given in one long speech with no clear differentiation.
There can be more than one speech at the end of a case if more than one judge presides over the case, such as in the House of Lords. The judges may have different reasons for coming to their judgment and therefore will want to explain their reasons separately; this can cause problems for precedent as there may be more then one ratio. Also if there is a dissenting judge then that judge may feel the need to explain why they did not agree with their peer/s this could be relevant to future judges.
Original precedent happens when a judge has to decide on a point of law which has never been decided before. Although the judge will have no rules which thy have to follow they may decide to use other cases that are close in principle and deal with similar issues to guide their decision in forming a new precedent, this is called reasoning by analogy. An example of creating a new law by analogy is in Hunter and others v Canary Wharf Ltd and London Docklands Development Corporation (1995), the claimant and others argued that the erection of a building interfered with their television signal and were claiming damages however the judge stated that a television signal was similar to a view and according to Aldred’s Case (1611) it was stated that a view is a delight not a necessity so the claimant lost.
A binding precedent has to be used when the facts of a case are sufficiently similar to that of the second case, a judge must follow it even if they do not agree with the decision. A binding precedent only applies if the precedent was made in a higher, or occasionally the same, court.
Persuasive precedent is not binding but the judge may consider it if they feel it is relevant in the case. In R v R (1991) the House of Lords agreed with a lower court, the Court of Appeal, that a man can be guilty of raping his wife; therefore although the House of Lords weren’t bound by the Court of Appeal they still followed the same decision.
The Judicial Committee of the Privy Council is not part of the court hierarchy so is not included in judicial precedent; however as many of its members are also members of the House of Lords which are higher and respected judges so their decisions are often considered. Courts in England and Wales have been known to follow the decision made by the Privy Council in Wagon Mound (No1) (1961), regarding tort.
The Obiter Dicta is often used as persuasive precedent, this can be seen in R v Gotts (1992) where in an earlier case it was ruled that duress could not be a defence to murder and in the Obiter Dicta the judge also said that duress would not be a defence for attempted murder, so when in R v Gotts the defendant argued against attempted murder as they were under duress the previous obiter was used as a persuasive precedent.
As mentioned earlier a dissenting judgment may be used as a persuasive precedent, especially if that case appeals to the House of Lords and the Lords decide to agree with the dissenting judge then the dissenting judge’s judgment persuaded the House of Lords.
Commonwealth countries have similar legal systems and principles to England and Wales so their decisions can be used as persuasive precedent.
Judicial Precedent – Avoiding
There are three ways which are rarely used which avoid following judicial precedent in certain circumstances; they are distinguishing, overruling and reversing.
Distinguishing is used when the judge finds the material facts of the case are sufficiently different so that he can draw a distinction between the case and the precedent. This has been demonstrated in Balfour v Balfour (1919) and Merritt v Merritt (1971), both cases involved a wife claiming against her husband for breach of contract, in Balfour it was found that there was no legal contract made and only a domestic agreement however in Merritt the agreement was made after the couple were separated and it was made in writing so the Merritt case was found to have a legal contract as the cases were sufficiently different.
Overruling is where a court decides that the legal rule decided in an earlier case is actually wrong, this is generally made by a higher court overruling the decision of a lower court however the European Court of Justice can overrule it’s own past decisions and by using the practise statement so can the House of Lords. The House of Lords overruled itself in the case of Pepper v Hart (1993) where it decided Hansard could be consulted in a case where previously in Davis v Johnson (1979) it had ruled that Hansard couldn’t be used.
Reversing is used when a case is sent to a higher court on appeal and the higher court reverses the decision of the lower court if the higher court doesn’t agree with the lower court’s decision.
Statutory Interpretation – Why it’s needed
Statutory interpretation is simply the interpretation of statute that is passed by Parliament, the meaning of the statute needs to be understood clearly but that is not always easy. Cases can go to because there is a disagreement over the meaning of a word or phrase in an Act of Parliament itself, this can be for many reasons which I will explain below.
If a word in an Act is designed to deal with several individual factors (a broad term) this can lead to some confusion over which factors are and aren’t covered. In Brock v DPP (1993) there was a dispute over the meaning of the word ‘type’ in the Dangerous Dogs Act 1991, the phrase said ‘any dog of the type known as the pit bull terrier’ the court found that the Act referred more to dogs that had a substantial number of the characteristics of such a dog.
Ambiguity is where a word has more than one meaning and it is not clear which meaning should be used.
There is likely to be a drafting error by the Parliamentary Council if the Bill has been drafted several times, this could lead to confusing or even non-sensical words or phrases.
New developments may make an Act of Parliament irrelevant or even wrong as it won’t support present events; this is seen in the case of Royal College of Nursing v DHSS (1981) where the Abortion Act 1967 stated only a qualified doctor could conduct abortions however progress in medical science meant a nurse could carry out the procedure, so the Act was outdated and no longer completely relevant.
Over time language changes and develops to the point where some words may change or lose their original meanings, this was seen in Cheeseman v DPP (1990) where the defendant was witnessed masturbating in a public toilet by two police officers; however according to the Town Police Clauses Act 1847 they had to be passengers, however the Public Health Amendment Act 1902 stated that ‘street could also mean any public place under the control of the local authority and the oxford English dictionary of the time of the Town Police Clauses Act stated that ‘passengers’ could also mean a ‘foot-passenger’ but as the police were not actually travelling at the time the defendant could not be arrested in those circumstances.
So statutory interpretation is needed to prevent the above problems from happening therefore the law can be understood and applied correctly which is important for a fair legal system.
Statutory Interpretation – How It’s Used
There are four main ways of putting statutory interpretation which will be explained in this section of the essay.
The first and simplest way of using statutory interpretation is the literal rule, this is the easiest and most popular as it is where the court takes the words of the Act of parliament as they are and quite often this is the best method as the words in the act should be clear and cause no problems. However if a judge takes the words too literally it can lead to an absurd verdict which is one of the main arguments against the constant use of the literal rule. In the case of Whitely v Chappell (1868) the defendant was charged with impersonating a person entitled to vote, the defendant impersonated someone who was on the electoral register but was dead, the court held that a dead person was not literally entitled to vote and therefore the defendant was not guilty, this could be viewed as an absurd verdict. The rule also can be too harsh as it is so clearly set out that no other factors can be considered such as in London & North Eastern Railway Co v Berriman (1946) where a railway worker was killed doing maintenance work and his widow tried to claim compensation as the company had not complied with the Fatal Accidents Act which states that a look-out man must be supplied for men working on or near the railway line ‘for the purpose of relaying or repairing’ it, the court decided this did not include maintaining in its literal meaning so the widow should not receive compensation for her husband’s death. Professor Michael Zander has criticised the rule for being too rigid and detached from the realities of language.
The second method is the Golden rule which is very similar to the literal rule except it stops short of an absurd meaning. The golden rule can be applied in two ways; the narrow application or the wider application. The narrow phrase means that although the word or phrase doesn’t have to be taken at its first meaning it has to be taken from one of its possible meanings, this is shown in R v Allen (1872) where under the Offences against the Person Act 1861 it was illegal to marry again whilst your spouse, as long as you’re not legally separated, is still alive. ‘Marry’ can mean either the legal binding or just the ceremony, the court decided it meant the ceremony as it’s illegal to commit bigamy so only your first marriage can truly be legally binding and therefore there would be a loophole and no one would be guilty of bigamy which would be an absurd situation. The wider application is where the meaning of the words is clear but they would lead to a repugnant situation so the words need to be modified to suit the situation as in Re Sigworth (1935) where a man killed his mother and as she had no will in accordance to the Administration of Estates Act 1925 then the son would have inherited all of her assets despite murdering her, the courts thought that this would be a morally repugnant situation and the court in effect wrote in an extra part to the Act concerning this situation.
The third method is the mischief rule which gives the judge much more power over their decisions as the court will look at the actual issue ‘gap’ and try to ‘bridge’ that gap rather than just look at the words of the Act itself. The mischief rule was used in Smith v Hughes (1960) where according to the Street Offences Act 1959 it was illegal for a common prostitute to solicit on a street or public place for the purpose of prostitution, six women had appealed as they had either been either on a balcony or behind part open or completely closed windows when they had been attracting mens attention. The court found them guilty as it decided the Act was aimed at preventing the soliciting of prostitution to people in a public place or on a street and the men who the prostitutes were appealing to were on the street. The same case was used in justifying the guilty verdict in Eastbourne Borough Council v Stirling (2000) where an unauthorised taxi driver parked in a taxi rink outside a station he was found guilty as he would have received customers from positioning his car in that area despite the fact it was on private land as the offer was still aimed at people on the street. Another case referring to this is the Royal College of Nursing v DHSS (1981), as mentioned before, as the Act was designed to prevent the poor state of abortions before, many were illegal and dangerous, so as it was possible for nurses to safely induce labour and carry out an abortion with the advancements in medical science the procedure was found as acceptable.
The final, purposive approach is one step higher then the mischief rule. Unlike the mischief rule which only considers the meaning of the Act the purposive approach decides what parliament was actually trying to achieve through the Act. This gives judges a lot of power to interpret an act as they wish and it is argued that they have too much power with this approach as they should only apply the law not create it. This approach is favoured by many European countries and since Britain joined the European Union in 1973 the purposive approach has become more popular in England and Wales, through the facts that judges have to use the purposive approach to interpret EU law and by this judges are becoming more accustomed to it and so are using it within English law more commonly. The purposive approach is used by the EU as there are many different languages within the member states and an exact translation is impossible to achieve so a purposive approach has to be taken so the law can be applied throughout Europe. An example of English Courts using this is Diocese of Hallam Trustee v Connaughton (1996) where once a woman retired from her job and it was re-advertised a man received the position and he received almost double the claimants pay and almost £7000 more than the advertised wage, the employment tribunal decided that the Treaty of Rome was against sexual discrimination.
Conclusion
In conclusion the doctrine of judicial precedent and statutory interpretation benefits the English legal system by striving to apply the law correctly and fairly. They are both flexible in the way that there are options to choose depending on the suitability of the case and the judges own personal preferences and yet they are still rigid enough to encourage consistency and certainty in the law therefore I feel judicial precedent and statutory interpretation are effective.
By Samantha Lewis
Bibliography
http://www.lawreform.ie/publications/data/lrc110/lrc_110.html
http://www.planetpapers.com/Assets/5222.php
The English Legal System – Jacqueline Martin
The English Legal System – Jo Smillie LLB