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ANALYSE

THE EXTENT TO WHICH JUDGES ARE ABLE TO DEVELOP THE LAW THROUGH THE

OPERATION OF THE DOCTRINE OF JUDICIAL PRECEDENT AND IN THE INTERPRETATION OF STATUTES .

DISCUSS

WHETHER JUDGES SHOULD BE ABLE TO DEVELOP THE LAW

Alex Saint Judicial Creativity is where judges develop and shape the law. This occurs as a result of their interpretation of statutes and following of the rule of precedent whilst deciding cases either departing from decisions in earlier cases or applying existing principles to new situations. Under the rules of precedent, decisions from the appellate courts (House of Lords, Court of Appeal and High Court) have a binding influence over the judges in lower courts they must follow the higher courts over previously decided principles. Persuasive precedent also exists through obiter dicta statements from the HL or CA, from courts in other jurisdictions as well as rulings from the Privy Council. It was held in the 19th century that judges didnt make law; they simply declared it. (Lord Esher Willis v. Baddeley [1892]) However, this was dispelled by Lord Reid in 1972, who stated that we dont believe in fairy tales anymore so we must, for better or for worse, accept that judges do create law Judges are creative in many ways, primarily though, through the interpretation of statutes. Usually, judges apply the statute law to the case theyre dealing with, especially if it is clearly worded and unambiguous, and then itd be applied word for word. However, when a case arrives before a judge and where a literal interpretation would result in injustice, the judge must utilise a different rule of interpretation such as the Golden Rule (R v. Allen) or the Mischief Rule (Smith v. Hughes), this allows a degree of creativity in the application of the law. The Golden Rule allows the judge to depart from the original meaning of the Act in order to avoid an unjust result. Adler v. George saw in the vicinity of come also to mean inside of as well as in the environs of. The Mischief Rule aims to identify the mischief that the Act was passed to prevent and adjust their decision as appropriate. The rule was established in Heydons Case (1584) and is also known as the British Rule. The case of Royal College of Nursing v. DHSS provides an excellent example of what the Mischief Rule was intended to do. Due to medical advancements, by the time of the case, nurses were able to carry out the second half of an abortion procedure; however, this was contrary to the provisions of the Abortion Act (1967) which stated a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner therefore making the activity of the nurses a criminal offence. Prosecuting nurses doing their job wasnt what was intended by Parliament when they made the law; the judges agreed that the mischief that the law intended to guard against was dangerous backstreet abortions and ruled that the nurses actions were, in fact, legal. Common Law is an integral part of the British Constitution and of the legal system. Its not passed by Parliament but created through the decisions of judges in cases which then have a binding influence over other judges under the system of precedent. This gives judges another opportunity to exercise some creativity whilst presiding over cases through: overruling, reversal, new issues and extending the legislation.

Overruling is a privilege enjoyed only by judges of the higher courts and is where and old case is replaced by another which better represents what would be the best for the public. Holley replaced Smith in terms of which characteristics could be used for the reasonable man in provocation cases, whilst Herrington superseded Addie v. Dumbreck in negligence. Reversal is where a higher court decides that the previous ruling on the case that has come before them on appeal was wrong. The arrival of a case that deals with a completely new concept gives the judge the chance to work on a blank canvas, no precedent exists for such a case and the judge can pass any decision he likes, within reason. Cases which exemplify this are Bland (Severe brain damage), Re. A (conjoined twins) and Gillick (distribution of contraception to underage girls.). All of the above were completely new cases in the English legal system. Despite all of this, there are limitations on what judges can do. Judges undoubtedly have permission to interpret statutes and develop common law but there are limits on this. Lord Devlin said of the role of judges and judicial creativity in 1972, that only 10% of judges legislate 10% of the time and that the majority are more concerned with apply directly what has previously been established. Cases in which judicial creativity is necessary (Test cases) are few and far between, with many issues having previously been dealt with before another judge. But when they do, they must strictly follow the rules of interpretation; they cannot give words meaning that cannot fit and if the meaning is clear than a literal interpretation approach must be followed, even if it produces an unjust result (Berriman). When judges do have a free reign, so to speak, they must justify their decisions. There are many advantages and disadvantages of having judges legislating. Having judges legislate mean that they protect citizens from harm by their government as in the Belmarsh case, they can also act where Parliament is unwilling, over controversial issues like marital rape (R v. R). Judges can also respond quickly whereas Parliament would spend months deciding upon policy, this is useful in medical cases where decisions are needed as soon as possible (Re: A). The down side of this is that judges may not look at the bigger picture while making decisions and that they arent representative of society and are more likely to make biased decisions (Bellinger & Bellinger). Judges are also unable to legislate on any case they wish and must wait for the case to appear before them, they cannot be proactive. (R v. R, R v. G). The case for judicial creativity is both widely supported and widely opposed with some in the centre ground arguing, still, that judges dont legislate. Professor Dworking believes that judges arent creative through the fact that they only apply existing legal principles to the new cases, recycling decisions and rulings from earlier cases. Berriman and Clegg emphasise this, the judges didnt apply any further principles that would benefit the greater good. Negligence cases have also seen the neighbour principle applied to numerous new situations instead of overhauling the law to deal with them. It is also argued that judges shouldnt even be involved in decisions on policy which should be left to Parliament, the elected body. The cases of R v. R, Brown and Majewski are all examples of contentious public policy cases. Public policy does influence decisions where there is no legal principle to cover the

situation, in these instances judicial activism is welcome and acceptable, so long as the judge makes his decision in accordance with societys views and opinions or else they shouldnt be made at all. Ultimately, the greatest limit on judicial creativity is the personality of the judges themselves. Only the most dynamic are bold enough to make decisions that could arouse controversy; Lords Denning is a perfect example of this, recognising cohabiting partners rights and equality in divorce law. Despite this, the dangers of too much judicial legislation can be shown through Denning again who often came out with controversial and racist statements, not what is wanted from a law maker.