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English legal system

Topics: Common law, Law, Precedent, Case law, Stare decisis / Pages: 7 (1729 words) / Published: Feb 23rd, 2014
Critically discuss the extent to which Judicial Precedent shapes English law and how Statutory Interpretation contributes to such a process.

The English legal system is a common law system, where the decisions of sitting judges in a case have future influence over future courts. Judicial Precedent binds judges by past decisions of higher courts, stare decisis, and they abide by them. This could be said to create a consistent and fair system i.e. a body of legal principles. Statutory Interpretation is how judges interpret/understand statutes, i.e. legislation set by Parliament. The two are linked in that they will help judges deal with cases in circumstances which have arisen before but also new situations where the law will need to be applied for the first time. This is where precedent is created and leads us to consider whether judges whose job it is to interpret the law should create law. A judgement has two parts the Ratio Decidendi which is the legal reasoning for the decision and the Obiter Dictum which is the "statement by the way", it can be helpful in that it can contain persuasive precedent e.g. if the facts had been different. In the case of R v Howe (1986) the House of Lords rules that duress could never be defence to a charge for murder and added in the obiter that it couldn 't be a defence for attempted murder either. In R v Gotts (1992) the Court of Appeal turned down the defence of duress for attempted murder persuaded by the obiter of the superior court even though it wasn 't binding. Persuasive precedent may also come from a lower court such as in R v R (1991) where the House of Lords held the decision of the Court of Appeal. Here a new precedent overturned the assumption that a man cannot rape his wife. This shows that through precedent the law can evolve as society develops and absurd outcomes can be avoided that occur by simply following the statutes. Judicial Precedent can be avoided by distinguishing, i.e. the fact of the case were different. The cases of Balfour v Balfour (1919) and Merritt v Merritt (1971), were considered different as in the Merritt case there was a legal contract between husband and wife in writing where as the Balfour case was a domestic arrangement with no written contract. A judge can impose a narrow ratio definition and claim that it doesn 't apply to their case as well as reversing or overruling a decision to avoid precedent. Judges avoid overruling as that would mean they were challenging existing legislation or precedent and making law rather than interpreting it. Bellinger v Bellinger (2005), showed the judges accepted they couldn 't change the law regarding transgender marriage as this was the job of parliament. In the case of R v R (1991) they were careful to state they were removing a misconception rather than changing the law. Avoiding precedent disadvantages the consistency of case law and the certainty which it brings, where one could be sure of an outcome based on what has come before. Case law saves time and money as the principles of a case don 't have to be reargued. It doesn 't make sense to challenge an established legal rule which have been justified by formal justice (Ratio Decidendi). It does allow judges discretion and evolving technology means that is necessary as the facts are frequently changing. This means precedent is modified as interpretation of the law can change over time. It can be up to the judge whether they are bound or not, which goes against the system on which the English Legal System was founded. When making an original precedent one must be careful as this will have an impact on all future similar cases, in Hunter and others v Canary Wharf Ltd and London Docklands Development Corporation (1995) there was no precedent case so Aldred 's Case (1611) and the blocking of a TV signal was equated to the blocking of a view in that it was inconvenient but not actionable. This shows another disadvantage of case law where judges can be seen to by take in the creation of law. However this sort of discretion avoids small matters heading to parliament. Statutory Interpretation is important as it leads to the creation of precedent. It is important as a word can have more than one meaning, the legislation can be poorly worded and over time language changes. For example in Brock v DPP (1993) there was unclarity over the wording of the Dangerous Dogs Act 1991. There are four ways of statutory interpretation. The literal rule takes the wording as it stands without really considering the meaning. R v Goodwin (2005) attempted to equate a jet-ski to a ship and convicted under the Merchant Shipping Act. Seeing as there was no precedent for these facts an attempt to interpret this piece of legislation in this way led to an absurd outcome. A higher court quashed the conviction seeing a jet-ski was not a navigation ship. This approach is fair in that the wishes of parliament are followed by sometimes the wording of statues causes problems in the interpretation e.g. Inland Revenue v Hinchy (1960) where it was unclear whether the fine for a late tax return was treble tax owed or treble the total tax bill. The literal approach led to a much bigger fine than was merited. Clearly this method has limitations when wording can be challenged, however it makes sure judges declare law rather than make it so keeps law creation and declaration independent. The golden rule is used when the literal rule would lead to an absurd outcome. It can be applied in the narrow sense where a word has two meanings. In R v Allen (1872) to take the word marry at its first meaning would make bigamy impossible and nobody would be guilty. Similarly Adler v George (1964) where in the area itself constituted in the vicinity of the area. Application in the wider sense is a little more controversial as judges can be seen to be making law. The wording of the statute is adapted to avoid an absurd outcome. Re Sigsworth (1935), judges prevented a son directly profiting from the murder of his mother as to take the Administration of Estates Act 1925 literally would have let an estate directly profit from an offence. Here a precedent was set and it could be said to be an instance of judiciary creativity. The situation was different in R v National Insurance Commissioner ex parte Connor (1981) but due to the precedent set in Sigsworth would have led to an injustice. This led to the courts having discretionary power on such types of case. A similar situation arose in R v Human Fertilisation and Embryo Authority, ex p Blood (1997) where a husband couldn 't give consent to artificial insemination due to being in a coma, here the literal rule was used leading to a harsh outcome even though Mrs Blood had sympathy of courts. There was no reason to reject the literal rule due to certainty in the legislation and the outcome was not absurd. The mischief rule is the most flexible with respect to interpretation, the judge can ask what remedy parliament was trying to provide, i.e. solution to mischief rather than simple words of statute. In Smith v Hughes (1960) the Street Offences Act 1959 meant to stop soliciting in a public place could include attracting attention from your balcony or window. A literal approach here would have favoured the defendant leading to an undesirable outcome. In Royal College Nursing v DHSS (1981) advancements in medical science meant it was now acceptable for nurses to carry out abortions. One could say that here common sense remedied the previous uncertain state of the law which concerned back street abortions, however this case points to legislation being rewritten rather than interpreted as it was outdated. The purposive approach looks beyond the words of the statute and considers the reason for its creation. It is used when interpreting EU law which is sometimes vague having been translated from another language. In Diocese of Hallam Trustee v Connaughton (1996) a British court ruled that paying a male successor significantly more to a female predecessor in a job amounted to sexual discrimination under Article 119 Treaty of Rome, equal pay for equal work. It is important to recognise that the interpretation of statutes and judicial precedent go hand in hand. Statutes becoming outdated and can adapt a new "modern" meaning. Precedent may not be relevant when the science or technology changes it. It is the interpretation of statutes that creates precedent, and where possible it should be binding so that English Law remains fair, consistent and efficient. The precedent set in the Royal College Nursing case was followed in R (Quintavalle) v Secretary of State for Health (2005) that parliament couldn 't have intended to leave CNR embryos unregulated. Whilst this assumes the wishes of parliament it is not possible to rewrite legislation of each development in science. Judges seem best placed to make subtle changes to statutes based on their experience and understanding of previous cases, however they must have firm legal reasoning for doing this and choosing not to follow precedent. English law allows for flexibility that avoids nonsense outcomes and discretion of judges is key to this as shown in R v R (1991). Judges must be careful to avoid personal prejudice and personal views. To not use the literal rule and to look further into legislation and asking what is considered an absurdity is already a point of view. This flexibility can as long as it is not abused be seen as a strength due to the efficiency it brings. To conclude Judicial Precedent and Statutory Interpretation play a big part in the shaping of English law attempting to provide fairness, consistency and clarity but giving judges enough room to manoeuvre where cases merit special consideration. There are critics who would say that the judiciary should only declare the law, but ambiguous legislation and subtle differences in cases due to technological developments mean that judges need to look beyond the wording to ensure that common sense prevails and justice is done.

Bibliography

Elliot, C & Quinn, F (2008): English Legal System, 9th Edition, Pearson Longman pp 1-60

Gillespie, A, (2007) The English Legal System, 1st edition, OUP pp 36-86

Slapper, G & Kelly, D (2009): The English Legal System, 10th Edition, Routledge Cavendish pp 65-139

Bibliography: Elliot, C & Quinn, F (2008): English Legal System, 9th Edition, Pearson Longman pp 1-60 Gillespie, A, (2007) The English Legal System, 1st edition, OUP pp 36-86 Slapper, G & Kelly, D (2009): The English Legal System, 10th Edition, Routledge Cavendish pp 65-139

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