English Legal System - Term Paper Example

Introduction Judges have at their disposal two tools by which they can control the development of the law. They are the doctrine of stare decisis or case law precedents and statutory interpretations.1 Although an Act of Parliament, courts are required to interpret statutes. Precedents originate from the courts but Parliament can legislate against them.2 Bennion and Goodall maintain that since Parliament has the last call the judiciary’s power is restricted.’3 Statutory Interpretations Recently the House of Lords in the interpretation of Section 1 of the Criminal Damages Act 1971 opined that ‘Since a statute is always speaking, the context or application of a statutory expression may change over time, but the meaning of the expression itself cannot change’4 By virtue of the literal rule, judges take a literal interpretation of the words used in the specific statutory provision. Difficulties arise when the legislation can have more than one interpretation. Generally, the courts will adapt the literal rule first, often guided by safeguards such as found in the words of Denning LJ who said that ‘we sit here to find out the intention of parliament and the ministers and to carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.’5 The literal approach can lead to absurd results. In R v Ann Harris the defendant bit the victim. A literal interpretation of the statute inferred the use of a weapon that could not include teeth. The defendant was acquitted.6 Another case demonstrated that the ordinary meaning of a word may not be so ordinary after all. The defendant was charged with possession with the intent to supply under the Misuse of Drugs Act 1971.7 The defendant argued that since he was only holding the drugs for a friend, he was not guilty of intent to supply as the word supply, did not ordinarily mean holding drugs for another. The majority did not agree.8 In Whitley v. Chappell9, impersonation of a person who was entitled to vote was illegal. It was held that since a dead person was not entitled to vote the defendant was not guilty of the offence charged. Viscount Dilhorne in Stock v Frank Jones said, ‘when the language of a statute is plain it is not open to the court to remedy a defect of drafting.’10 In Jones v DPP, Lord Reid said that it was an important principle that judges not attribute meanings to statutory provisions that the words could not ‘reasonably bear.’ If the words used are capable of bearing more than one interpretation, ‘then you can choose between those meanings, but beyond that you must not go.’11 In Dupont Steels Ltd. v. Sirs, Lord Diplock explained that it was not for the judiciary to inject ‘fancied ambiguities as an excuse for failing to give effect to’ the meaning of clear statutory words simply because they may find the results unjust. Lord Diplock went on to say, ‘if this be the case it is for Parliament, not for the judiciary’ to change statutory law.12 The Golden Rule was interpreted by the House of Lords in Grey v. Pearson as ‘the ordinary sense of the words is to be adhered to, unless it would lead to absurdity, when the ordinary sense may be modified to avoid the absurdity but no further.’13 In another case, the court determined that ‘married’ could mean having participated in a wedding ceremony.14 In another case Lord Reid explained that it was only when it was impossible to construe the words used in accordance with the obvious intentions of the legislature, and ‘will avoid a wholly unreasonable result that the words of the statute must prevail.’15 There are two methods of applying the Golden Rule. The first method provides for a narrow interpretation in instances where ambiguity exists and the courts will favour the word which does not produce absurd consequences. In Alder v George the defendant was charged with ‘obstruction’ of HM forces ‘in the vicinity of any prohibited place’ contrary to Section 3 of the Official Secrets Act 1920.16 It was alleged that the defendant’s obstruction took place at sea. The court did not apply the literal rule in interpreting Section 3 and as a result the accused person was convicted.17 The second approach involves a broader interpretation of the statute to avoid an outcome that might offend public policy, even if there might only be one possible meaning. In Re Sigsworth under Section 46 of the Administration of Estates Act 1925 a beneficiary under an estate could take his inheritance if he had murdered the settlor or testator. The word ‘issue’ within the meaning of Section 46 came to be interpreted by the courts.18 It was held that although the word ‘issue’ had only one literal meaning, it would in this case be interpreted to exclude the word ‘son ’ as it was contrary to a common law principle forbidding a beneficiary to benefit from his crime.19 In another case the House of Lords determined that the word ‘or’ in Section 1 of the Oil in Navigable Waters Act 1955 must be read conjunctively as it appeared in the following context: ‘If any oil…is discharged from a British ship…the owner or master will be guilty of an offence.’20 As a consequence of this construction of the word ‘or’ both the owner and the master were convicted.21 The Mischief Rule is often called the rule in Heydon’s case22 and is used to construe statutory provisions that were enacted for the purpose of curing some defect in common law. When interpreting these statutory provisions the judge will determine what mischief the statute intends to remedy. In Corkery v Carpenter Section 12 of the Licensing Act 1872 which made provision for an arrest without warrant of a person found navigating a ‘carriage’ while intoxicated was considered.23 The defendant was arrested for navigating a bicycle while intoxicated. The court held that bicycle was a ‘carriage’ since Section 12 intended to protect the public from the dangerous consequences of the drunken navigation of vehicles.24 In Royal College of Nursing v DHSS, Lord Diplock, in speaking of the Abortion Act 1967 addressed the remedy provided by the provision in respect of decriminalizing abortions. He said that ‘the Abortion Act 1967 may have its faults but it presents a much more coherent and understandable position than that which continues to prevail in the jurisdiction.’25 The purposive approach to interpretation of statutory provisions is used when interpreting the statutes of the European Community. By virtue of Section 2 (4) of the European Communities Act 1972, if any conflict arises between an EC provision and a provision of the UK, the EC provision will prevail. All UK laws will have to be interpreted to give way to the EC provision.26 R v Offen concerned section 2 of the Crime (Sentences) Act 199727 required the imposition of a life sentence on persons convicted of serious offences if, ‘unless the court is of the opinion that there are exceptional circumstances relating to either of the offences or to the offender which justify its not doing so’. The act did not provide a definition of ‘exceptional circumstances’, neither did it make provision for a life sentence not to be imposed on a defendant who did not appear to constitute a continuous danger to the public.28 The main issue in R v Offen was whether Section 2 of the 1997 Act contravened Articles 3 and 5 of the Convention if the court imposed a life sentence. The Court of Appeal concluded that ‘…section 2 of the 1997 Act will not contravene Convention rights if courts apply the section so that it does not result in offenders being sentenced to life imprisonment when they do not constitute a significant risk to the public’.29 The purposive construction of a statute was used in R v Registrar General ex parte Smith which addressed Section.51 of the Adoption Act 1976 which permits a person attaining the age of majority to obtain the details contained in his birth certificate. The applicant’s mother was incarcerated for double murder and psychiatric evidence indicated that disclosure of the information would endanger the mother’s life. The Court ruled that parliament did not intend to promote serious crime.’30 There are other useful aids for the interpretation of statutes. The Interpretation Act 1978 contains common terms and definitions.31 The Human Rights Act 1998 provides for compatibility similar to the European Community Act 1972.32 Definitions, headings, side notes, long and short titles, and preambles are provided in numerous statutes. Stare Decisis Stare Decisis is Latin for ‘the decision stays,’ and is used to describe the doctrine of judicial precedent. The court must have sufficient superiority to bind itself on lower courts and the ruling must contain a ratio decidendi or decided on law not fact.33 Although the ratio decidendi may be the same in two cases, the facts may differ causing different rulings.34 Obiter dictum on the other hand, refers to ‘by the way’ statements and while not binding can have persuasive value.35 Judicial precedent provides consistency and certainty. The rationale is that cases sharing similar facts and circumstances should receive similar treatment. Although, been the judiciary has departed from this tendency, departures are rare.36 In Re Schweppes Ltds Agreement,37 Wilmer LJ sitting in the Court of Appeal dissented. In a later case that day, the same legal point arose38, he maintained that he was bound to follow the previous decision. Decisions of the House of Lords are binding on all other courts and itself although not always.39 Lord Gardiner, said ‘Their Lordships…recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it seems right to do so.’40 In British Railways Board v Herrington the House of Lords examined a number of earlier decisions that held that the duty of care in respect of trespassing children was limited. The duty owed by the occupier was only to avoid reckless regard for children whom he knew would trespass on his property. Public policy toward trespassing children at the time was that no duty of care ought to exist in this regard. However, in the British Railway Case public policy had shifted so that the House of Lords departed from the limited duty of care to impose a special duty of care.41 In Miliangos v George Frank (Textiles) Ltd. the House of Lords had decided earlier on that all damages in English courts had to be expressed in sterling. In Miliangos case, as a result of the sterling’s place on the world market, the House of Lords felt that the times had changed and relaxed the rule.42 In one case the House of Lords reversed an earlier decision because it felt that the earlier decision was wrong. The case was one of criminal attempts. A year earlier the House of Lords had made one decision in a similar case and the Law Lords criticized the decision.43 In another case the House of Lords found an earlier decision was wrong, but held that it should not be overruled.44 Similarly the House of Lords overruled itself in Anderton v. Ryan45 and Conway v Rimmer.46 Conclusion When judicial precedents are overruled they can have retrospective or prospective effect. This is another aspect of the similarities between judicial precedents and statutory laws. Despite judicial flexibility in interpreting statutes and setting precedents, the judiciary is limited in its ability to prevent changes in the law.47 Be that as it may, the judiciary can control the development of law through the mechanisms available in both case law and statutory provisions. As Lord Reid noted, ‘…we must accept the fact that for better or worse judges do make the law, and tackle the question how do they approach their task and how should they approach it.’48 This might be closer to the truth.       Bibliography Abortion Act 1967 Administration of Estates 1925 Adoption Act 1976 Alder v George [1964] 2 QB 7 HL Anderton v. Ryan [1985] All ER 355 HL Bennion, Francis & Goodall, Kay. A New Skill? Law-Text Analysis. [2006] 3 Web JCLI http://webjcli.ncl.ac.uk/2006/issue3/bennion-goodall3.html Viewed December 10, 2006 British Railways Board v Herrington [1972] AC 877 HL Conway v Rimmer [1968] AC 910 HL Corkery v Carpenter [1956] 2 ALL ER 745 HL Crime (Sentences) Act 1997 Davis, Fergal F. Extra-Constitutionalism, the Human Rights Act and the ‘Labour Rebels’: applying Prof Tushnet’s theories in the UK [2006] 4 Web JCLI http://webjcli.ncl.ac.uk/2006/issue4/davis4.html Viewed December 16, 2006 Dupont Steels Ltd. v. Sirs [1980] 1 W.L.R. 142 European Community Act 1972 Federal Steam Navigation Co. Ltd. v. Department of Trade and Industry [1974] 1 W.L.R. 505 HL Grey v. Pearson (1857) 6 HL Cas 1 HL Harris, B.V. (2002), ‘Final Appellate Courts Overruling their Own “Wrong” Precedents: the Ongoing Search for a Principle’, 118 Law Quarterly Review 408. Heydon’s case (1584) 3 Co Rep 7a Interpretation Act 1978 Jones v DPP [1962] AC 635 CA Jones v. Secretary of State for Social Services [1972] 1 AC 944 HL Lee, Orlan. Systems Dynamics in the Law: A Comparative Approach to Certainty in the Common Law and Reviewability of Past Decisions. (2004) Oxford U Comparative L Forum 5 http://ouclf.iuscomp.org/articles/lee2.shtml Viewed December 10, 2006 Licensing Act 1872 London Street Tramways Co.v.London County Council [1898] AC 375 HL Luke v IRC [1963] AC 557 HL Magor and St Mellons v Newport Corporation [1950] 2 All ER 1226 CA Miliangos v George Frank (Textiles) Ltd. [1976] 3 ALL ER 801 HL Misuse of Drugs Act 1971 Official Secrets Act 1920 Oil in Navigable Waters Act 1955 Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 HL Reid, LJ. The Judge as Law Maker (1972) 12 J.S.P.T.L.22 Re Schweppes Ltds Agreement [1965] 1 All ER 195 CA Re Sigsworth [1935] Ch 89 HL Royal College of Nursing v DHSS [1981] AC 800 HL R v Allen (1872) LR 1 CCR 367 CA R v Ann Harris (1836) 7 C & P 446 Crim Crt R v Maginnis [1987] 1 AC 303 HL R v Registrar-general, ex parte Smith [1990] 2 All ER 88 HL R v Offen [2001] 1 WLR 253 HL R v R and G [2003] UKHL 50 HL R v Shivpuri [1987] AC 1 HL Scruttons Ltd.v.Midland Silicones Ltd [1962] AC 446 HL Select Committee on European Scrutiny Fourteenth Report (March 2005) http://www.publications.parliament.uk/pa/cm200405/cmselect/cmeuleg/38-xiv/3818.htm Viewed December 10, 2006 Slapper, G and D. Kelly. The English Legal System. (2001) London: Cavendish Zander, Michael. The Law Making Process (Law in context) (2004) Cambridge University Press Stock v. Frank Jones (Tipton) Ltd. [1978] 1 WLR 321 HL Whitley v. Chappell [1868] 4 LRQB 147 CA Zander, Michael. The Law Making Process (Law in context) (2004) Cambridge University Press Table of Cases Alder v George [1964] 2 QB 7 HL Anderton v. Ryan [1985] All ER 355 HL Bennion, Francis & Goodall, Kay. A New Skill? Law-Text Analysis. [2006] 3 Web JCLI http://webjcli.ncl.ac.uk/2006/issue3/bennion-goodall3.html Viewed December 10, 2006 British Railways Board v Herrington [1972] AC 877 HL Conway v Rimmer [1968] AC 910 HL Corkery v Carpenter [1956] 2 ALL ER 745 HL Crime (Sentences) Act 1997 Dupont Steels Ltd. v. Sirs [1980] 1 W.L.R. 142 HL Federal Steam Navigation Co. Ltd. v. Department of Trade and Industry [1974] 1 W.L.R. 505 HL Grey v. Pearson (1857) 6 HL Cas 1 HL Heydon’s case (1584) 3 Co Rep 7a Jones v DPP [1962] AC 635 CA Jones v. Secretary of State for Social Services [1972] 1 AC 944 HL London Street Tramways Co.v.London County Council [1898] AC 375 HL Luke v IRC [1963] AC 557 HL Magor and St Mellons v Newport Corporation [1950] 2 All ER 1226 CA Miliangos v George Frank (Textiles) Ltd. [1976] 3 ALL ER 801 HL Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 HL Re Schweppes Ltds Agreement [1965] 1 All ER 195 CA Re Sigsworth [1935] Ch 89 HL Royal College of Nursing v DHSS [1981] AC 800 HL R v Allen (1872) LR 1 CCR 367 CA R v Ann Harris (1836) 7 C & P 446 Crim Crt R v Maginnis [1987] 1 AC 303 HL R v Registrar-general, ex parte Smith [1990] 2 All ER 88 HL R v Offen [2001] 1 WLR 253 HL R v R and G [2003] UKHL 50 HL R v Shivpuri [1987] AC 1 HL Scruttons Ltd.v.Midland Silicones Ltd [1962] AC 446 HL Stock v. Frank Jones (Tipton) Ltd. [1978] 1 WLR 321 HL Whitley v. Chappell [1868] 4 LRQB 147 CA Table of Statutes Abortion Act 1967 Administration of Estates 1925 Adoption Act 1976 Crime (Sentences) Act 1997 European Community Act 1972 Human Rights Act 1998 Interpretation Act 1978 Licensing Act 1872 Misuse of Drugs Act 1971 Official Secrets Act 1920 Oil in Navigable Waters Act 1955 Read More