Year 1 Lsm Guide b&n

Legal system and method
Simon Askey
Charlotte Crilly
FB/INSTA/TWITTER/LINKEDIN © BooksandNotes.pk For Notes WA:+92322-7575311

This module guide was prepared for the University of London by:
u Simon Askey LLB, LLM, MEd, MA, Dean, Undergraduate Laws, University of London.
u Charlotte Crilly LLM, MA (Oxon), Teaching Fellow, University of London.
This is one of a series of module guides published by the University. We regret that
owing to pressure of work the authors are unable to enter into any correspondence
relating to, or arising from, the guide.
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© University of London 2020. Reprinted with minor revisions 2021
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Legal system and method page i
Contents
Module descriptor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Introduction to Legal system and method . . . . . . . . . . . . . . . . . . . . . . 3
This module is different from other law subjects . . . . . . . . . . . . . . . . . . . 3
Structure of the module . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
The overall approach of the module . . . . . . . . . . . . . . . . . . . . . . . . . 3
Purpose and content of the module materials . . . . . . . . . . . . . . . . . . . . 4
How to study this module . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Module aim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Learning outcomes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Textbook and other reading material . . . . . . . . . . . . . . . . . . . . . . . . 6
Part A: Introduction to law and the legal system . . . . . . . . . . . . . . . 9
1 Introduction to law and the legal system . . . . . . . . . . . . . . . . 9

1.1 What is law? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.2 What is law for? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.3 What is the English legal system? . . . . . . . . . . . . . . . . . . . . . . 12
1.4 Classification of law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1.5 What is legal method? . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2 Sources of law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.2 Parliament and statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.3 The courts and common law or ‘judge-made law’ . . . . . . . . . . . . . . 20
2.4 European Union law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.5 European Convention on Human Rights . . . . . . . . . . . . . . . . . . . 21
2.6 Sources of law: the comparative context . . . . . . . . . . . . . . . . . . . 25
2.7 The impact of further international law . . . . . . . . . . . . . . . . . . . 26
2.8 Law reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
3 Historical development of the common law . . . . . . . . . . . . . . 31

3.1 The importance of the historical context . . . . . . . . . . . . . . . . . . . 33
3.2 The development of the common law . . . . . . . . . . . . . . . . . . . . 33
3.3 The development of equity . . . . . . . . . . . . . . . . . . . . . . . . . 34
4 The constitution and the legal system . . . . . . . . . . . . . . . . . . 37

4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
4.2 The British Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
4.3 Constitutional principles . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Part B: Legal method . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
5 The doctrine of judicial precedent . . . . . . . . . . . . . . . . . . . . 47

5.1 What is judicial precedent? . . . . . . . . . . . . . . . . . . . . . . . . . 49
5.2 Judges as law makers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

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6 Judicial precedent in practice . . . . . . . . . . . . . . . . . . . . . . 59

6.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
6.2 Vertical and horizontal precedent in the court hierarchy . . . . . . . . . . . 61
7 The interpretation of statutes . . . . . . . . . . . . . . . . . . . . . . 73

7.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
7.2 Why is the interpretation of statutes so difficult? . . . . . . . . . . . . . . 75
7.3 Giving effect to Parliament’s intention . . . . . . . . . . . . . . . . . . . . 76
7.4 Historic approaches to interpretation . . . . . . . . . . . . . . . . . . . . 76
7.5 Aids to interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
8 Modern approaches to statutory interpretation . . . . . . . . . . . . . 83

8.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
8.2 Purposive interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
8.3 European influence on statutory interpretation . . . . . . . . . . . . . . . 86
8.4 The impact of the Human Rights Act 1998 on statutory interpretation . . . . 87
9 Legal skills: finding and citing sources of law . . . . . . . . . . . . . . 95

9.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
9.2 Starting to find legal resources . . . . . . . . . . . . . . . . . . . . . . . . 97
9.3 Law reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
9.4 Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
10 Legal skills: reading cases and statutes . . . . . . . . . . . . . . . . . 103

10.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
10.2 Why read cases and statutes? . . . . . . . . . . . . . . . . . . . . . . . 105
10.3 Reading cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
10.4 Reading statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
Part C: Legal system . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
11 Courts in the English legal system . . . . . . . . . . . . . . . . . . . 113

11.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
11.2 Some preliminary distinctions . . . . . . . . . . . . . . . . . . . . . . . 115
11.3 The role of the courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
11.4 The hierarchy of the courts . . . . . . . . . . . . . . . . . . . . . . . . . 116
11.5 Case study: the UK Supreme Court . . . . . . . . . . . . . . . . . . . . . 121
11.6 Tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
11.7 European and international courts . . . . . . . . . . . . . . . . . . . . . 124
11.8 Future directions of the court system . . . . . . . . . . . . . . . . . . . . 125
12 The constitutional role of the judiciary . . . . . . . . . . . . . . . . . 129

12.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
12.2 Judicial independence and constitutional change . . . . . . . . . . . . . 131
12.3 Changes introduced by the Constitutional Reform Act 2005 . . . . . . . . 132
12.4 Independence and the European Convention on Human Rights . . . . . . 132
12.5 The executive and the judiciary after the Constitutional Reform Act 2005 . 133
12.6 Codification of judicial independence in statute . . . . . . . . . . . . . . 134
12.7 Measures supporting the independence of the judiciary . . . . . . . . . . 135
12.8 Personal independence of the judiciary . . . . . . . . . . . . . . . . . . 137
12.9 Judicial power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140

Legal system and method page iii
13 Judicial appointment and diversity . . . . . . . . . . . . . . . . . . . 151

13.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
13.2 Who are the judiciary? . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
13.3 The public importance of judicial selection . . . . . . . . . . . . . . . . 154
13.4 How diversity contributes to legitimacy . . . . . . . . . . . . . . . . . . 154
13.5 Judicial appointments prior to the Constitutional Reform Act 2005 . . . . . 155
13.6 Judicial selection process after the Constitutional Reform Act 2005 . . . . . 156
13.7 Problems with judicial recruitment . . . . . . . . . . . . . . . . . . . . 158
13.8 Alternative approaches to judicial appointment . . . . . . . . . . . . . . 159
13.9 Judicial training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
13.10 Increasing judicial diversity . . . . . . . . . . . . . . . . . . . . . . . . 160
14 Legal professionals . . . . . . . . . . . . . . . . . . . . . . . . . . . 171

14.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
14.2 The legal profession . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
14.3 The regulation of legal professionals . . . . . . . . . . . . . . . . . . . . 174
14.4 Legal ethics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
14.5 Solicitors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
14.6 Barristers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
14.7 Changes to legal services . . . . . . . . . . . . . . . . . . . . . . . . . . 176
14.8 Legal training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
15 The civil justice system . . . . . . . . . . . . . . . . . . . . . . . . . 181

15.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
15.2 Distinctions between civil and criminal justice systems . . . . . . . . . . 183
15.3 The scope of the civil justice system . . . . . . . . . . . . . . . . . . . . 184
15.4 What is the civil justice system for? . . . . . . . . . . . . . . . . . . . . 184
15.5 How does the civil court process work? . . . . . . . . . . . . . . . . . . 185
15.6 Civil justice and the rule of law . . . . . . . . . . . . . . . . . . . . . . . 187
15.7 The challenge of providing accessible and affordable civil justice . . . . . . 188
15.8 Future reform of the civil justice system . . . . . . . . . . . . . . . . . . 190
15.9 ‘Transforming our justice system’ summary of reforms . . . . . . . . . . . 191
16 Access to civil justice and legal aid . . . . . . . . . . . . . . . . . . . 193

16.1 What is access to justice? . . . . . . . . . . . . . . . . . . . . . . . . . 195
16.2 Access to civil justice and legal aid . . . . . . . . . . . . . . . . . . . . . 195
16.3 The history of legal aid . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
16.4 The effects of LASPO 2012 . . . . . . . . . . . . . . . . . . . . . . . . . . 196
16.5 Post-implementation review of LASPO . . . . . . . . . . . . . . . . . . . 198
16.6 Is there a right to legal aid in civil cases? . . . . . . . . . . . . . . . . . . 199
16.7 Access to civil justice and the rise of litigants in person . . . . . . . . . . . 201
17 Alternative dispute resolution (ADR) . . . . . . . . . . . . . . . . . . 207

17.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
17.2 Main types of ADR processes . . . . . . . . . . . . . . . . . . . . . . . . 209
17.3 The modern development of mediation . . . . . . . . . . . . . . . . . . 211
17.4 The common law on mediation . . . . . . . . . . . . . . . . . . . . . . 212
17.5 The debate on mandatory mediation . . . . . . . . . . . . . . . . . . . . 213
17.6 Evaluation of ADR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214
17.7 Disappearing trials, privatisation of justice and the rule of law . . . . . . . 215

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18 The criminal justice system . . . . . . . . . . . . . . . . . . . . . . . 219

18.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
18.2 What is the criminal justice system and what is it for? . . . . . . . . . . . 221
18.3 A framework for evaluating criminal justice systems . . . . . . . . . . . . 224
18.4 Criminal justice and the rule of law . . . . . . . . . . . . . . . . . . . . . 225
18.5 The place of the victim in the criminal justice system . . . . . . . . . . . . 227
18.6 The criminal court system . . . . . . . . . . . . . . . . . . . . . . . . . 227
18.7 The Crown Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
18.8 Efficiency and effectiveness of the criminal justice system . . . . . . . . . 229
18.9 Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
18.10 Miscarriages of justice . . . . . . . . . . . . . . . . . . . . . . . . . . . 232
19 The investigation and prosecution of crime . . . . . . . . . . . . . . 235

19.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237
19.2 Police powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237
19.3 The prosecution of crime: the Crown Prosecution Service . . . . . . . . . 240
20 The jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247

20.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
20.2 Jury decision-making in criminal trials . . . . . . . . . . . . . . . . . . . 249
20.3 Selection of the jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252
20.4 Jury misconduct and the internet . . . . . . . . . . . . . . . . . . . . . . 254
20.5 Reform of the law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256
20.6 Race and jury fairness . . . . . . . . . . . . . . . . . . . . . . . . . . . 257
20.7 The decline of the jury trial? . . . . . . . . . . . . . . . . . . . . . . . . 259

Legal system and method page v
Module descriptor
GENERAL INFORMATION
Module title
Legal system and method
Module code
LA1031
Module level
Contact email
The Undergraduate Laws Programme courses are run in collaboration with the
University of London. Enquiries may be made via the Student Advice Centre at:
https://sid.london.ac.uk
Credit value
30
Courses on which this module is offered
CertHE, LLB, EMFSS
Module prerequisite
None
Notional study time
300 hours
MODULE PURPOSE AND OVERVIEW

Legal system and method is a compulsory module of the Standard Entry LLB and
CertHE Common Law. Students must select it on first registration. The module is
an introduction to the English legal system and describes the distinctiveness of
the common law approach as a legal methodology. The module is vital in initiating
students into the process of legal research and the understanding of legal reasoning.
MODULE AIM
To achieve an overview of the central institutions and processes of the English legal
system and to introduce students to techniques of legal interpretation and legal
research.
LEARNING OUTCOMES: KNOWLEDGE

On successful completion of the module students should be able to:
1. Understand the structure and operation of the central institutions and processes
of the English legal system;
2. Explain the purpose and basic structure of the civil justice system and the place
and value of alternative methods of dispute resolution;
3. Explain the purpose and basic structure of the criminal justice system and the
tension between the objectives of crime control and the protection of civil
liberties and human rights;
4. Describe the role and constitutional position of judges and, in particular, the law
lords and the Supreme Court;
5. Understand judicial approaches to statutory interpretation and the influence of

European law on those approaches;

page vi University of London
6. Understand the essential ingredients of the rule of law, and the importance of
fairness and justice in social and legal systems.
LEARNING OUTCOMES: SKILLS

Students completing this module should be able to:
7. Apply the techniques of legal reasoning covering precedent and statutory

interpretation;
8. Identify key issues in a case and summarise points clearly and accurately;
9. Conduct basic legal research tasks using primary and secondary sources;
10. Respond coherently to straightforward questions about the law using legal
referencing appropriately;
11. Locate legal sources;
12. Demonstrate understanding of legal terminology;
13. Understand the principles of good academic practice.
BENCHMARK FOR LEARNING OUTCOMES

Quality Assurance Agency (QAA) benchmark statement for Law 2019.
MODULE SYLLABUS
(a) The nature of the common law tradition, with particular reference to human rights.
(b) Sources of law and principles of legal research, with an emphasis on reading cases/
statutes and essay writing.
(c) Conduct of legal research and retrieval of legal information, with particular
reference to the use of the London online library and web-based resources in
finding cases, statutes and journal articles.
(d) The doctrine of precedent and the principles of statutory interpretation.
(e) Judicial reasoning in relation to (i) cases, and (ii) statutes.
(f) The judiciary, with particular reference to the role of the judges and the Human
Rights Act.
(g) The criminal justice process (in outline) and the role of rights in the process, with
particular attention to the jury and the impact of the Human Rights Act.
(h) The civil justice process (in outline), with particular attention to reform and the
role of rights.
LEARNING AND TEACHING
Module guide
Module guides are the student’s primary learning resource. The module guide covers
the entire syllabus and provides the student with the grounding to complete the
module successfully. The module guide sets out the learning outcomes that must
be achieved, as well as providing advice on how to study the module. The guide also
includes the essential reading and a series of self-test activities, together with sample
examination questions, designed to enable students to test their understanding. The
module guide is supplemented each year with the pre-exam update, made available
on the VLE.
The Laws Virtual Learning Environment

The Laws VLE provides one centralised location where the following resources are
provided:
u a module page with news and updates;
u a complete version of the module guides;

Legal system and method page vii
u online audio presentations;
u pre-exam updates;
u past examination papers and reports;
u discussion forums where students can debate and interact with other students;
u quizzes – multiple-choice questions with feedback are available for some modules,
allowing students to test their knowledge and understanding of the key topics.
The Online Library

The Online Library provides access to:
u the professional legal databases LexisLibrary and Westlaw;
u cases and up-to-date statutes;
u key academic law journals;
u law reports;
u links to important websites.
Core reading
Students should refer to the following core text:
¢ Holland, J. and J. Webb Learning legal rules: a students’ guide to legal

method and reasoning. (Oxford: Oxford University Press, 2019) 10th edition
[ISBN 9780198799900].
http://ukcatalogue.oup.com/product/9780198799900.do
ASSESSMENT
There are self-assessment questions at the end of each section of the module guide
designed to test knowledge and understanding. There are additional interactive
online activities in the form of multiple-choice questions and other online tasks, which
test skills outcomes 7–13. These activities prepare students to demonstrate learning
outcomes that are formally tested in the summative assessment.
Summative assessment consists of:
A three-hour and 15-minute unseen examination paper divided into three parts:
u Part A of the examination is a compulsory set of questions based on a case that has
been previously made available to students on the VLE. Students are required to
submit a case note on the VLE by the due date. Failure to submit the case note by
the due date will result in failure of Part A of the examination;
u Part B requires students to answer two essay questions out of six;
u Part C is a compulsory set of questions on a statute that has been previously made
available to students on the VLE.
Please be aware that the format and mode of assessment may need to change in
light of extraordinary events beyond our control, for example, an outbreak such as
the coronavirus (COVID-19) pandemic. In the event of any change, students will be
informed of any new assessment arrangements via the VLE.
Permitted materials
None. The statute relating to Part C is provided as part of the examination paper.

page viii University of London
Notes

Introduction
Contents
Introduction to Legal system and method . . . . . . . . . . . . . . . . . 3
This module is different from other law subjects . . . . . . . . . . . . . 3
Structure of the module . . . . . . . . . . . . . . . . . . . . . . . . . . 3
The overall approach of the module . . . . . . . . . . . . . . . . . . . 3
Purpose and content of the module materials . . . . . . . . . . . . . . . 4
How to study this module . . . . . . . . . . . . . . . . . . . . . . . . . 4
Module aim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Learning outcomes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Textbook and other reading material . . . . . . . . . . . . . . . . . . . 6

page 2 University of London

Legal system and method Introduction page 3
Introduction to Legal system and method

Welcome to the module guide for Legal system and method (LSM). This is a
foundational module which provides you with some essential building blocks for
the study of law. Learning about law and legal systems is endlessly fascinating, and
the material in this module provides a basis for your understanding of the other
modules you will study as part of your University of London programme of study.
The knowledge and skills from this module will form the foundations for your study
of law.
This module will help you to become familiar with some of the specialist
vocabulary of the law; it will introduce you to the essential skills of the lawyer –
such as how to read legal cases and statutes (Acts of Parliament); and it will provide
an overview of some of the key institutions and processes that make up what we
understand as the legal ‘system’.
This module is different from other law subjects

The material in this module is somewhat different from many of your other modules.
Whereas, for example, criminal law and contract law focus on detailed legal rules
(what we refer to as ‘substantive law’), this subject looks more broadly at the
machinery of the legal system which is necessary to make the law work – so that
disputes are resolved peacefully and so that those who have broken the law may
be brought to justice. You will need to have an understanding of what law is and its
role in society as well as the meaning and significance of the concept of the ‘rule
of law’. You need to understand some basic constitutional principles – such as the
relationship between the government, law makers and judges – as well as how various
parts of the legal system work together. You will also need to be familiar with some
of the guiding principles of legal procedure in relation to dealing with civil disputes
(such as disputes over contracts or property) and in relation to the detection,
prosecution and punishment of criminal offences (such as theft or murder).
Structure of the module

The module is divided into three parts.
u Part A introduces law as a subject. It gives you some key information about
sources of law, and puts the law in its historical and constitutional context.
u Part B deals with legal method, comprising the operation of judicial precedent
and statutory interpretation in the courts. You will also start to develop your
own legal method skills through learning how to read cases and statutes, as well
as finding and citing sources of law. These skills will be essential not just for your
study of Legal system and method but for your legal studies as a whole.
u Part C is concerned with the nuts and bolts of the institutions and actors in the
legal system. It covers the structure and jurisdiction of the courts, the judiciary
and the operation of the civil and criminal justice systems.
The overall approach of the module

This module introduces the English legal system by attempting to put it into
context, in particular the comparative context: that is, in comparison with
other legal systems. Throughout the module guide, comparisons will be drawn
between the English legal system and other legal systems. In particular, you will be
introduced to some civil law legal systems, which operate in much of continental
Europe and around the world. In civil law legal systems, there are different
sources of law and different court system structures. Common issues such as the
appointment of judges, the use of juries and the role of the constitution have been
dealt with in different ways in the English common law system compared with civil

law systems. Taking a comparative approach will enable you to assess and evaluate the
English legal system in the light of the way in which other jurisdictions have designed
their legal systems. You will be encouraged in the module not just to learn about the
legal system but to critically evaluate and reflect on it, and to form your own reasoned
opinions.
Purpose and content of the module materials

This module guide is designed to help you through the material that you need to
learn, understand and apply. It is not a textbook, but the chapters introduce you
to the factual information, ideas, policy issues and debates that form the subject
matter of the module. It guides your further reading and provides a framework for
understanding. Make sure you study at least the Core and Essential reading and
preferably at least some of the Further reading – the module guide on its own is not
enough.
Each chapter starts with an introduction to the topic and summarises the key issues
that you need to know and understand. The sections of the guide direct you to the
Core reading, comprising the set textbook, Essential reading and relevant legal cases,
which can be found on the virtual learning environment (VLE) or in the Online Library.
There is plenty of Online Library guidance on the VLE which will assist you in using the
Library to find resources, and it is important that you become familiar with using the
Library as you will need to use it throughout your studies. The Online Library contains
databases such as Westlaw and LexisLibrary, where you can access some of the module
readings.
At the end of each chapter of the module guide there are some questions for
reflection, to test how well you understand the material you have read and to
encourage you to undertake further reading and research in order to develop your
knowledge and understanding of the legal system and legal reasoning. Some of these
are short-answer, self-assessment questions, and others are sample essay questions.
How to study this module

For each topic in the module, your study should always commence with this module
guide. You will find that some chapters are longer and more detailed than others. For
a short chapter, you may decide to read the whole thing, or just a section of a longer
chapter. There are tips on reading skills on the VLE, which will help you to structure
your module guide reading effectively. The VLE also has tips on organisational skills,
which will help you to plan your studies and decide how much time to allocate to
reading and studying.
After the module guide, you should read the Core text and Essential reading that the
guide directs you to. The module guide alone does not provide all the information,
ideas and debates that you will need to effectively answer the questions in the LSM
examination paper. You will further deepen your understanding of the topics if you
also read at least some of the Further reading. It is up to you how much of the Further
reading you want to carry out; you must use your own judgement to decide what and
how much to read. Do not be put off by a large number of items on a Further reading
list. Choose the reading that you think will be of most interest and use to you; there
is no expectation that you will read everything. Perhaps you will want to follow up on
something you have read in the text of the module guide and want to learn more about
or to read about in more depth.
There are also references to primary legal sources to read where relevant. Primary
sources are the law itself, such as statutes and case law. This is in contrast to secondary
sources, which comment on and explain the law, for example, legal journal articles
and textbooks. Reading primary sources is important, as these are the authoritative
statements of what the law is. Chapter 10 of the module guide will help you to
effectively read statutes and case law.

You should make sure you make full use of the formative assessment questions
which you will find at regular points throughout the module guide. The formative
assessment questions consist of:
u Short-answer self-assessment questions at the end of each chapter. These will

require you to recall different aspects of what you have read in that chapter. They
may require different levels of detail to answer. The important thing is that you use
them to recall and test what you have learned.
u Sample essay questions at the end of most chapters. You should try writing an
essay or an essay plan for these questions, and then consider the advice given on
answering the question, to compare with what you have written.
These formative assessment questions will help you to actively think about all the
material you have read and enable you to develop your knowledge and understanding
of the legal system and legal reasoning. Then revisit any topics you are still unsure
about. This type of active learning will help you to really understand the material, in
preparation for the examination. Make sure you have attempted all the questions
before moving on to the next section.
As you get nearer to the examination, you should make sure you study past
examination papers and Examiners’ reports, which you can find on the VLE. You should
refer to the VLE throughout your studies; it contains other materials beyond just the
module guide.
Module aim
The aim of the module is to achieve an overview of the central institutions and
processes of the English legal system and to introduce students to the techniques of
legal reasoning and interpretation.
Learning outcomes
On successful completion of the module, you should be able to:
u understand the structure and operation of the central institutions and processes
of the English legal system and have a basic facility with techniques of legal
interpretation
u conduct legal research using primary and secondary resources
u understand techniques of legal reasoning covering precedent and statutory

interpretation
u describe the role of judges, in particular the law lords and the Supreme Court
u explain the basic structures of civil and criminal justice
u understand the role of due process and the importance of Article 6 of the European
Convention on Human Rights in civil and criminal justice
u explain the key concepts of legal aid.
Assessment
Formative assessment is conducted through interactive online activities.
Summative assessment is through three-hour and 15-minute unseen examination

paper divided into three parts:
u Part A of the examination is a compulsory set of questions based on a case that has
been previously made available to students on the VLE. Students are required to
submit a case note on the VLE by the due date. Failure to submit the case note by
the due date will result in failure of Part A of the examination;

u Part B requires students to answer two essay questions out of six;
u Part C is a compulsory set of questions on a statute that has been previously made
available to students on the VLE.
The case note
Students are required to write a case note based on a case. The name of the case will
be published on the VLE. The case note is submitted via the VLE by the due date (stated
on the VLE). The process for submitting the case note is explained on the LSM module
page. Candidates encountering problems with the submission process should log an
enquiry through the student portal at least two days before the due date. Students
who do not submit the case note by the due date will fail Part A of the examination.
The case note cannot be taken into the examination. Guidance on writing the case
note can be found on the LSM module page of the VLE.
Textbook and other reading material

Each chapter in this module guide contains Core, Essential and suggested Further
readings that is specific to the material in that chapter. In addition, there are textbooks
that you may want to consult. Several of these are available electronically.
Core text
¢ Holland, J. and J. Webb Learning legal rules: a students’ guide to legal
method and reasoning. (Oxford: Oxford University Press, 2019) 10th edition
[ISBN 9780198799900].
Essential reading
¢ Askey, S. and I. McLeod Studying law. Macmillan Study Skills (London: Red Globe
Press, 2014) fourth edition [ISBN 9781137412683].
Further reading
Introductory texts which give a concise overview of this subject:
¢ Rivlin, G. First steps in the law. (Oxford: Oxford University Press, 2015) seventh
edition [ISBN 9780198735892].
¢ Slapper, G. How the law works. (Oxford: Routledge, 2016) fourth edition
[ISBN 9781138914971].
¢ Wacks, R. Law: a very short introduction. (Oxford: Oxford University Press, 2015)
second edition [ISBN 9780198745624].
Substantial legal system texts providing detailed material on module topics:
¢ Kelly, D. Slapper and Kelly’s the English legal system. (Abingdon: Routledge, 2020)
19th edition [ISBN 9780367139476].
¢ Partington, M. Introduction to the English legal system 2018–2019. (Oxford: Oxford

University Press, 2018) 13th edition [ISBN 9780198818861].
¢ Slorach, S., J. Embley, P. Goodchild and C. Shephard Legal systems and skills.
(Oxford: Oxford University Press, 2017) third edition [ISBN 9780198785903].
¢ Gillespie, A. and S. Weare The English legal system. (Oxford: Oxford University
Press, 2019) seventh edition [ISBN 9780198830900].
If you want to follow up on some of the comparative law information on the law in
other jurisdictions, you could consult some of the following textbooks:
¢ Steiner, E. French law: a comparative approach. (Oxford: Oxford University Press,

2018) second edition [ISBN 9780198790891].
¢ Youngs, R. English, French and German comparative law. (Abingdon: Routledge,

2014) third edition [ISBN 9780415540674].

¢ Zweigert, K. and H. Kötz An introduction to comparative law. (Oxford: Clarendon
Press, 1983) third edition [ISBN 9780198268598].
Websites
There are many legal websites on the internet. Some of these will be very useful
and will help you to find extra resources and to stay up to date with legal news and
developments.
When sourcing content, make sure it is an appropriate and suitable source. Think
about whether the source is:
u accurate
u well presented
u clearly explained
u up to date
u relevant
u at the right level for your studies
u objective
u from a trusted source of information.
Some websites you might want to have a look at are:
u Judiciary of England and Wales, at www.judiciary.gov.uk

Useful for accessing recent speeches by senior judges, for obtaining information
about courts and the judiciary, and for finding news about important changes to
procedure.
u Ministry of Justice, at www.gov.uk/government/organisations/ministry-of-justice

Useful for research publications and for information about government policy in
relation to the courts and the judiciary.
u UK Parliament, at www.parliament.uk
u Useful for legislation, reports of committees and Hansard – the official record of
debates in Parliament.
u Supreme Court, at www.supremecourt.uk

Contains decisions of cases at the Supreme Court and videos of current and
decided cases.
u The Law Commission of England and Wales, at www.lawcom.gov.uk

Contains reports and consultations about reforming the law.
u Law Society, at www.lawsociety.org.uk

Useful for developments on legal aid and access to justice. May also have
information about the judiciary and important new cases.
u Bar Council, at www.barcouncil.org.uk

Details developments on legal aid and access to justice, the judiciary and leading
cases.
You could also look for other resources on the internet, for example, reputable legal
blogs or follow Twitter accounts about the law.
One useful resource is the blog by Martin Partington, author of Introduction to the
English legal system, at https://martinpartington.com/ Another is the blog of Sir Henry
Brooke, a retired judge, at https://sirhenrybrooke.me/ Following the death of Sir Henry
in 2018, the blog is no longer updated but it still provides interesting commentary on
the English legal system.
If you use Twitter, you could follow the Law Society, the Bar Council, the Ministry of
Justice, the UK Parliament, the UK Supreme Court and many others.

There are also several good-quality English newspapers available on the internet,
which report regularly on legal issues. For example:
u Guardian law section, at www.theguardian.com/law
u Guardian studying law section, at www.theguardian.com/law/studying-law
u The Times law section, at www.thetimes.co.uk/topic/law (subscription site).
The weblinks provided are subject to change. If a link is no longer working, please use
the title or other information given to search for the site’s new address.

Part A: Introduction to law and the legal system
1 Introduction to law and the legal system
Contents
1.1 What is law? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.2 What is law for? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.3 What is the English legal system? . . . . . . . . . . . . . . . . . . . . 12
1.4 Classification of law . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1.5 What is legal method? . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
u describe the characteristics of law
u outline the broad social purposes of law
u distinguish different types of legal system
u explain different ways of classifying law.
Core text
¢ Holland and Webb, Chapter 1 ‘Understanding the law’.
Essential reading
¢ Wacks, Chapter 1 ‘Law’s roots’ (available on the VLE).
¢ Partington, Chapter 2 ‘Law and society: the purposes and functions of law’
(available on the VLE).
¢ Askey and McLeod, Chapter 7 ‘Legal method’, pp.95–104 (available in VLeBooks

via the Online Library).
Further reading
¢ Gillespie and Weare, Chapter 1 ‘The English legal system’.
¢ Slorach et al., Chapter 2 ‘Legal systems and sources of law’, pp.34–38 and
pp.60–66.
¢ Tetley, W. ‘Mixed jurisdictions: common law vs civil law (codified and

uncodified)’ (Part I) and (Part II) (1999) Uniform Law Review pp.591–618 and
pp.877–907; www.unidroit.org/english/publications/review/articles/1999-3-
tetley1-e.pdf

Legal system and method 1 Introduction to law and the legal system page 11
1.1 What is law?

You might think this is an easy question to answer, but although our lives and
behaviour are regulated by a complicated system of rules, norms and conventions,
only some of these are defined as ‘law’.
Our first introduction to rules comes from our parents – don’t talk with your mouth
full, don’t run up and down the stairs, don’t shout; and then at school – don’t speak in
class, don’t eat in class, do your homework on time and so on. Other rules are ‘social
norms’ or conventions – turn taking in conversation, covering your mouth when you
cough.
But the rules that we are concerned with in the study of law are those that can be
enforced by, or with the assistance of, the state. Some rules have the force of law,
while other rules or conventions will simply lead to social disapproval. If you break
the rule ‘don’t take someone else’s property’, you may be liable to pay a penalty that
will be imposed by the state. If you drive carelessly and injure someone, you may be
required to pay them compensation. On the other hand, if you push to the front of
a queue in the supermarket in England, you are likely to be subject to serious social
disapproval, but no formal penalty will be applied. There are significant differences
between societies when it comes to which kinds of behaviour will lead to disapproval
and which kinds of behaviour will lead to a formal penalty being imposed by the state.
For example, while adultery is disapproved of in England and Wales, it will not lead to
formal punishment, although it may be grounds for divorce. By contrast, in Islamic law
adultery will lead to a criminal penalty being imposed.
There is considerable philosophical debate about the nature of law and why some
rules are enforced by the state and others are not, but for our present purposes a
practical answer to the question ‘what is law?’ could be given as ‘the rules by which
societies agree to live, which are enforceable by the coercive power of the state’.
1.2 What is law for?

Law performs critical social functions. It has a broad, important role in helping to
maintain order in society. When we talk of ‘society’ we are referring to humans living
together in relatively peaceful harmony; and law is central to the notion of ‘social
order’. Partington argues that the broad or ‘macro’ functions of law are to maintain
public, political, social, economic, international and moral order (2018, pp.8–18).
So, for example, laws relating to ownership of property or laws relating to business
transactions support economic activity by ensuring that commercial transactions are
carried out in an orderly way and that rights and duties are respected and enforceable.
Law in this context can also protect weaker parties involved in commercial
transactions to ensure that bargains are fair.
Partington goes on to argue that the ‘micro’ functions of law are to achieve more
specific social objectives. So, for example, one of the micro functions of law is to define
the limits of acceptable behaviour by specifying action that is so morally reprehensible
that it will attract a criminal penalty – like murder or theft of property. This can be
contrasted with behaviour that is deemed morally wrong but not criminally wrong,
such as careless driving that causes damage, and which will attract a civil penalty
rather than a criminal penalty. Another important micro function of law is to ensure
that those in public office do not abuse their power.
Partington points out that one of the problems of the many functions of law is that
sometimes functions can be in conflict. So, for example, the objective of preserving social
order may conflict with the protection of civil liberties or the right to expression. This
conflict occurs when citizens want to take to the streets to demonstrate to express their
dissatisfaction about some issue and the police are concerned that such a demonstration
might lead to violent disorder. Which objective should prevail? Freedom of expression or
social order? Similarly, when governments are facing terrorist threats they must balance
the desire to protect society through enlarging the power of the police and courts
against the danger to civil liberties and infringement of human rights.

1.3 What is the English legal system?

The legal system, broadly speaking, comprises the law, which is produced by law-
making bodies and also the institutions, processes and personnel that contribute to
the operation and enforcement of those laws. So, for example, we can say that the
English legal system comprises: legislation and common law, courts, judiciary, legal
professionals, police, prosecutors, juries and mechanisms for providing access to
justice. In effect, the legal ‘system’ describes the law and the machinery provided for
adjudication and implementation.
Although it would be nice to think there is a unified and coherent legal system that
can be studied by law students, in reality this is not the case. Different parts of the legal
system have evolved separately and over time, and do not always fit together well.
Take the example of employment law disputes, such as a breach of an employment
contract or a claim for discrimination at work. Some of these disputes can be resolved
in the courts, and others in specialist employment tribunals. Sometimes claimants
have a choice between these two venues, and must weigh up a number of complex
competing factors to decide where to start their legal case. This is further complicated
by the fact that other, more informal ways of resolving the dispute are available, such
as mediation and conciliation (discussed further in Chapter 17).
Most people would agree that the courts, how they work and the legal professionals
who work in them (judges, lawyers, police and the Crown Prosecution Service) are
a key part of the legal system. But people might also resolve legal disputes through
tribunals or alternative dispute resolution methods or simply through informal
negotiation. It is not always clear therefore what forms part of the ‘English legal
system’. In this module you will learn about different aspects that can be considered
part of the legal system: how the law is made through legislation and courts; dispute
resolution mechanisms, including courts, tribunals and alternative dispute resolution;
and the role of judges and legal professionals in the legal system.
In this module, we will usually refer to the English legal system. More correctly, this
should be the legal system of England and Wales, but we will refer to the English legal
system for the sake of brevity. Although they are also part of the United Kingdom,
Scotland and Northern Ireland each have separate, quite different, legal systems.
1.3.1 Different ‘families’ of legal system

Around the world there are different traditions in legal systems. As Tetley (1999) explains,
a legal tradition reflects deep-rooted, historical attitudes about the nature of law, about
the role of law in society and about the way law should be made, applied and studied.
Two major ‘families’ of legal systems are common law and civil law systems. As we will
see, the English legal system is a common law system; in fact, it is the original common
law system. In this module, we will be comparing this common law system with other
legal traditions around the world, in particular civil law legal systems.
Civil law legal systems

Civil law is the oldest surviving legal tradition in the world. It had its origin in
Roman law and later developed in continental Europe and around the world. A key
distinguishing feature of civil law is that it is a ‘codified’ system. Jurisdictions with civil
law systems, such as France, Germany and Japan, have comprehensive, continuously
updated legal codes that specify all matters capable of being brought before a
court, the applicable procedure and the appropriate punishment for each offence.
These codes distinguish between different categories of law. In a civil law system,
the judge’s role is to establish the facts of the case and to apply the provisions of the
applicable code. Although the judge often brings the formal charges, investigates the
matter and decides on the case, he or she works within a framework established by a
comprehensive, codified set of laws. The judge’s decision is consequently less crucial
in shaping civil law than the decisions of legislators and legal scholars who draft and
interpret the codes.

Some key features of civil law systems are:
u they possess a codified system of law (e.g. civil code, codes covering corporate law,
administrative law, tax law)
u they have written constitutions based on specific codes
u only legislative enactments are considered binding for all
u there is little scope for judge-made law, although judges generally follow
precedent
u there are constitutional courts that can nullify laws, and their decisions are
binding.
Common law systems

The common law legal tradition has its roots in developments in England in the 11th
century. In common law systems, legal principles are to be found in the decisions of
judges adjudicating in individual cases. The common law is usually more detailed than
civil law, and common law systems operate on the basis of ‘binding precedent’, so
that judges in a particular case must follow the decisions of judges in earlier similar
cases. These precedents are maintained over time in the records of the courts, as
well as historically documented in collections of case law known as law reports. The
precedents to be applied in the decision of each new case are determined by the
presiding judge. The common law tradition of England was transported around the
world to countries that were once part of the British Empire. Among the countries
with common law systems are Australia, Canada, New Zealand, Pakistan and Hong
Kong, as well as many others.
Some of the key features of common law systems are:
u there is not always a written constitution or codified laws
u judicial decisions are binding, and decisions of the highest court can only be
overturned by the same court or through legislation
u everything is permitted that is not expressly prohibited by law.
Other countries have a ‘mixed system’ that include some elements of the common law
as well as some elements of civil law – for example, parts of Africa, India and parts of
the Far East.
1.4 Classification of law

Lawyers have generally classified the law into several broad areas, although this is
complicated by the fact that some of the basic terminology has different meanings,
depending on the context.
1.4.1 Three different meanings of the term ‘common law’

One of the most confusing terminology problems for law students are the different
meanings of the key term ‘common law’.
Common law and statute law: when common law is contrasted with statute law,
common law is referring to the law found in the decisions of the courts rather than the
legal rules contained in Acts of Parliament (statutes).
Common law and equity: In Chapter 3 you will learn how equity developed as a body
of law reflecting principles of ‘conscience’ and designed to do justice in situations
where the common law was not able to do so. Even though the courts of equity were
combined with the common law courts in the 19th century, there are still two distinct
bodies of case law – common law and equity. Modern courts will refer to certain
principles or remedies as equitable, contrasting them with common law principles
and remedies.

Common law and civil law: in this context, the distinction being drawn is between
the English legal system and the family of common law jurisdictions and civil law
jurisdictions whose systems are derived from Roman law – such as Germany, France
and Japan. Interestingly, while England and Wales is a common law jurisdiction, the
legal system of Scotland is based largely on civil law.
1.4.2 Public law and private law

Private law deals with relations between individuals where the state is not directly
involved – such as the enforcement of contracts or ownership of property. Public law,
by contrast, deals with the relationship between citizens and the state; for example,
where an individual believes that their human rights have been infringed by an
action of the state. Judicial review is the procedure by which citizens can seek to
challenge the decision, action or failure to act of a public body, such as a government
department or a local authority or other body exercising a public law function.
In an action for judicial review, the judiciary will assess the extent to which a
public body or person has acted within their legal powers. This includes actions of
government ministers. See, for example, the case of R v Lord Chancellor ex p Witham
[1997] 2 All ER 779, in which the Divisional Court of the High Court (Queen’s Bench
Division) held that the Lord Chancellor had exceeded his powers in removing a
provision that citizens on low incomes would be exempt from paying court fees to
access the courts. It was held that the action denied their right to a fair trial.
1.4.3 Civil law and criminal law

There is also another meaning of ‘civil law’. When dealing with the law within the
English legal system, as opposed to contrasting the English legal system with civil law
jurisdictions, civil law can be contrasted with criminal law. In this context, civil law
is a form of private law and involves the resolution of disputes between citizens or
businesses. Criminal law, on the other hand, is an aspect of public law in which the
state will prosecute an individual for behaviour that the state wishes to control and
which is deemed to be morally reprehensible. In criminal law the state prosecutes an
individual in the name of the Crown on behalf of society at large. This is why cases are
reported as ‘Regina v …’ which stands for ‘the Queen against …’
In the English common law system, an important distinction between civil and
criminal law is in the ‘standard of proof’ required for different types of case. The
standard of proof relates to the requirement for the facts of cases to be proved by
evidence. How sure does the court have to be that the evidence proves the facts?
In criminal cases, the prosecution is required to prove the case in court ‘beyond
reasonable doubt’. This is a demanding standard justified by the fact that the accused
is facing the possibility of a criminal penalty being imposed if found guilty. In civil
cases, the standard of proof is on ‘a balance of probabilities’, a less challenging
requirement, which means that the court merely has to be of the view that it is more
likely than not that the defendant is liable.
The category of civil law covers a wide variety of legal areas. Some of the major
subdivisions of civil law are as follows.
Contract law: this deals with legally binding agreements between parties. Contracts
are used to cover transactions relating to a wide range of issues, such as sale of goods,
sale of land, employment relationships, etc. Key areas of court action relate to breach
of contract.
Law of tort: a tort is a civil wrong which causes another person to suffer damage or
loss. The law of tort covers a body of civil obligations, rights and remedies. Where
a person has suffered some sort of personal or financial damage as a result of the
wrongful actions of another person they may be able, under the law of tort, to claim
financial compensation. Key areas of court action relate to negligence (careless
behaviour) and defamation (writing or speaking a false statement about someone
which damages their reputation).

Family law: this deals with matters relating to family and domestic relationships.
Issues dealt with in family courts include distribution of property on the breakdown of
relationships, arrangements relating to children and child support.
Land law: this is the set of rules that govern the land and anything attached to it, such
as trees or buildings, or anything in it, for example, treasure or oil. Key areas of court
action relate to disputes over rights to land, rights across land, rights in relation to the
use of land and boundaries between neighbouring land.
1.4.4 Inquisitorial and adversarial procedure

One of the differences between common law and civil law jurisdictions is in
their approach to legal proceedings. Although the differences can sometimes be
overstated, English legal proceedings (and common law court proceedings in general)
are generally based on ‘adversarial’ procedures in which the parties are responsible for
preparing their case and collecting their evidence. At the trial of the case in court, the
parties’ advocates will present their clients’ respective arguments in a sort of contest
before a judge (or judge and jury). Witnesses will be called to give evidence and then
cross-examined on their evidence. The role of the judge is to remain relatively passive
during proceedings, ensure that procedures are followed and at the end of the hearing
or trial give the decision based on a view of the legal merits of the parties in relation
to the facts presented. Adversarial processes work best when there is a rough equality
between the parties in terms of representation and resources.
By contrast, in civil law jurisdictions, legal cases are determined on the basis of
‘inquisitorial’ procedures. In inquisitorial proceedings the judge plays a more active
role in the investigation of a case. The judge will decide which witnesses should be
called and will take responsibility for uncovering the facts of the case. In serious
criminal cases in France, judges may be involved as part of the investigation as
examining magistrates. At the trial the judge assumes a direct role, conducting
the examination of witnesses, often basing his or her questions on the material
in the pretrial dossier. Neither the prosecution nor the defence has the right to
cross-examine.
The adversarial and inquisitorial models are distinguished primarily by whether the
parties or the court control three key aspects of the litigation: initiating the action,
gathering the evidence and determining the sequence and nature of the proceedings.
1.5 What is legal method?

At its simplest, legal method can be described as the way in which lawyers and judges
think, reason and argue about the law. It encompasses the techniques of reasoning
and arguing that lawyers use when trying to solve legal problems, whether this be
lawyers advising clients or judges deciding cases in courts.
Why do lawyers need to use legal reasoning? The reason is that it is very often not
clear what the law is on any given subject. Partly this is because of the problem of
language. Words in a statute may be ambiguous or have more than one meaning. To
deal with this issue, the courts have developed rules of statutory interpretation, to
enable them to determine what the law is in a statute.
Legal reasoning is also crucial in relation to the doctrine of judicial precedent. You
will learn more about this in Chapter 5, but, broadly speaking, it means that, when
deciding cases, judges are bound in certain circumstances to follow earlier court
decisions. It is important to be able to decide which parts of earlier court decisions are
binding and how they are to be applied in the case currently before the court, and this
is also part of legal method.

Self-assessment questions
1. Define ‘law’ in your own words.
2. Think of some important rules of behaviour that are not ‘laws’ as we have
defined them. How are they enforced? How important do you think those
nonlegal rules are to social order?
3. What are the different functions of law? Give some examples.
4. Name five things you might study as part of the ‘English legal system’.
5. Explain some differences between common law and civil law systems.
6. Name three common law and three civil law jurisdictions.
7. Explain the difference between civil and criminal law.
8. Explain the different ways in which the term ‘common law’ is used in the
following statements:
u ‘England and Australia are common law countries but Japan and China are
not.’
u ‘At common law, even an unfair contract term would be enforced, but under
the Unfair Contract Terms Act such terms may not be enforced.’
9. What is the standard of proof in civil and criminal cases? Why do you think the
standard is different?
10. Explain the basic difference between adversarial and inquisitorial court
proceedings.

2 Sources of law
Contents
2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.2 Parliament and statutes . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.3 The courts and common law or ‘judge-made law’ . . . . . . . . . . . . 20
2.4 European Union law . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.5 European Convention on Human Rights . . . . . . . . . . . . . . . . . 21
2.6 Sources of law: the comparative context . . . . . . . . . . . . . . . . . 25
2.7 The impact of further international law . . . . . . . . . . . . . . . . . 26
2.8 Law reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Learning outcomes
u identify the sources of law and law-making processes
u analyse the sources of law in a comparative context
u understand why and how the law is reformed.
Core text
¢ Holland and Webb, Chapter 1 ‘Understanding the law’.
Essential reading
¢ Slapper and Kelly, Section 2.5 ‘The Human Rights Act 1998’ and Section 3.6 ‘Law
reform: the role of the Law Commission’ (available in VLeBooks via the Online
Library).
Further reading
¢ Partington, Chapter 3 ‘Law-making: authority and process’.
Primary legal sources

¢ European Convention on Human Rights.
¢ Human Rights Act 1998.
¢ R v A [2001] UKHL 25; [2001] 3 All ER 1.
Further reading
¢ Greer, S. ‘The interpretation of the European Convention on Human Rights:
universal principle or margin of appreciation?’, UCL Human Rights Review 3 2010,
pp.1–14 (available in HeinOnline through the Online Library).
¢ Steiner, Chapter 1 ‘Legislation and the constitutional framework’, pp.4–14;

Chapter 2 ‘Codification’, pp.37–48; and ‘Chapter 4 ‘Case law’, pp.85–92.
¢ Bell, J. ‘English law and French law: not so different’, Current Legal Problems 48(2)
1995, p.63, pp.83–86 ‘Legal sources’.
¢ ‘How are laws made?’, at www.parliament.uk/about/how/laws/
¢ University of London Undergraduate Laws Blog ‘The Law Commission: reforming

the law’, 29 November 2018, at https://lawsblog.london.ac.uk/2018/11/29/
the-law-commission-reforming-the-law/
¢ Lord Thomas ‘“Law reform now” in 21st century Britain: Brexit and beyond’,
sixth Scarman Lecture, 26 June 2017, at www.judiciary.uk/wp-content/
uploads/2017/06/lcj-speech-scarman-lecture-20170626.pdf

Legal system and method 2 Sources of law page 19
2.1 Introduction
In studying the operation of the legal system, we need to be able to recognise which
rules are regarded as ‘law’ and how important any particular rule is in relation to other
rules. In English law, the source of a rule is relevant in determining both its significance
and whether it takes precedence over a rule that comes from another source. In the
English common law system, there are three principal sources of law:
1. Law made by Parliament – referred to as ‘legislation’, ‘statutes’ or ‘Acts of

Parliament’. These are written laws that express the will of the legislature.
2. Law decided in the courts – referred to as ‘common law’ or ‘case law’. These are
decisions of judges in particular cases, which are applied by other judges in later
cases through the process of precedent.
3. European Convention on Human Rights – referred to as Human Rights Law or

ECHR, emanating from the European Court of Human Rights and now incorporated
into UK law through the Human Rights Act 1998.
2.2 Parliament and statutes

In England and Wales the supreme law-making body is Parliament. Parliament has two
‘chambers’: the House of Commons, comprising democratically elected Members of
Parliament (MPs); and the House of Lords, comprising members who are appointed
and some who have inherited the right to serve in the House. This is not to be
confused with the Appellate Committee of the House of Lords, which, until 2009, was
the final court of appeal for the UK.
A valid ‘Act of Parliament’ is written law and is the end product of a long process
following the introduction of a draft ‘Bill’ in Parliament. Before a Bill is introduced to
Parliament, the government will normally go through a process of consultation. They
will publish what is called a ‘Green Paper’, which sets out the tentative proposals for
changes to the law, and invite comments. Green Papers were first used in 1967 and are
now usually used as part of the legislative process. This will be followed by a ‘White
Paper’, which contains the government’s firm proposals for new law and may have the
draft Bill attached.
Following consultation, the draft Bill is introduced in Parliament and then

debated, discussed and amended. Once a Bill has gone through all of the necessary
Parliamentary processes it will be signed by the Queen (Royal Assent) and then
published as an Act.
A valid Act of Parliament takes precedence over common law or case law. Indeed,
it takes precedence over everything except EU law (this is subject to changes as a
consequence of Brexit).
2.2.1 The distinction between primary and secondary legislation

In discussion about legislation, or law emanating from Parliament, there is a
distinction between ‘primary legislation’ and ‘secondary legislation’. Primary
legislation refers to Acts of Parliament or statutes. Because it often takes a long time
for primary legislation to get through all of the various stages in the Parliamentary
process, the drafting of Acts may contain only broad provisions or rules and then the
detailed rules are produced later under the authority of the Act. These detailed rules
are known as secondary legislation or ‘statutory instruments’ and take the form of
‘regulations’, ‘rules’ or ‘orders’. They have the force of law, but can be implemented
with less scrutiny than primary legislation.
2.2.2 Devolved legislation

‘Devolution’ means the transfer of some powers to the three nations (other than
England) which make up the United Kingdom: that is, Scotland, Wales and Northern

Ireland. The Scotland Act 1998, Government of Wales Act 1998 and Northern Ireland
Act 1998 established the Scottish Parliament, the Welsh Assembly and the Northern
Ireland Assembly and devolved some powers to these bodies. The scope of the areas
within which the devolved bodies can make legislation is different for each devolved
legislature, and the individual arrangements have changed over time since devolution
came into effect.
Each of the devolved legislatures can pass legislation in areas that are specified
by statute, as well as being bound by much of the legislation passed by the UK
Westminster Parliament. You may, in your study of law, sometimes see references to
Acts of the Scottish Parliament, Acts of the National Assembly for Wales (or, previously,
Measures of the National Assembly for Wales) or Acts of the Northern Ireland Assembly.
2.3 The courts and common law or ‘judge-made law’

In contrast to statute law, when we refer to the ‘common law’ we are referring to the
law contained in decisions of the courts rather than legal rules contained in Acts of
Parliament. As discussed in Chapter 1, the term ‘common law’ may also be used in
two other contexts. This can be confusing for students new to law, but gradually the
meaning in different contexts will become very familiar and cause no difficulty.
England and Wales is a common law system, meaning that many of our most
fundamental legal rules and principles have been established by judges deciding
individual cases, rather than these rules being laid down by Parliament. So, for
example, most of the law relating to the formation of binding contracts is to be found
in the common law rather than in statutes. When a lawyer or judge is looking for
the rules on the formation of contract they will refer to important legal cases which
set out the legal principles. In other words, they will be looking at case law or ‘legal
precedents’ which establish the relevant legal principles.
As we will see in Chapter 3, the body of court decisions that comprises English
common law has developed over many years, dating back to its origins in the 12th
century. In the 18th century, a famous judge and legal commentator, Sir William
Blackstone, explained the source of English common law as follows:
The Common Law is to be found in the records of our several courts of justice in books
of reports and judicial decisions, and in treatises of learned sages of the profession,
prescribed and handed down to us from the times of ancient antiquity. They are the laws
which gave rise and origin to that collection of maxims and customs which is now known
by the name of common law.
(Sir William Blackstone 1723–1780, Commentaries on the laws of England)
2.4 European Union law

The European Union (EU) is an economic and political partnership between 27
European countries, created after the Second World War. The initial approach was to
encourage economic cooperation on the assumption that economic interdependence
might avoid future conflict. The EU now encompasses both economic and political
union. It is based on the rule of law and its laws are based on treaties that have been
democratically agreed by all member countries.
One of the EU’s main goals is to promote human rights. Since the Treaty of Lisbon
in 2009, the EU’s Charter of Fundamental Rights has placed all these rights in a
single document. The EU’s institutions are legally bound to uphold them, as are EU
governments whenever they apply EU law.
When the UK joined the EU in 1973 (until 31 December 2020 when EU law ceased to be
part of English law) law emanating from the European Parliament, European Council
and European Commission governed certain activities and practices in the UK.
Under the European Union (Withdrawal Agreement) Act 2020, the UK left the EU on 31
January 2020. EU law and the implementation period, a time of transition when EU law

remained a source of UK law, ended on 31 December 2020. EU law is no longer a source

of UK law but the European Union (Withdrawal) Act 2018 (WA) made provision for
what is defined as ‘retained EU law’. The precise scope of what is included in ‘retained
EU law’ is beyond the LSM syllabus and it is sufficient for our purposes to say that
retained EU law is a snapshot of EU law as it existed on 31 December 2020, which was
converted into UK domestic law. Retained EU law is now part of domestic law either as
primary or secondary legislation.
2.5 European Convention on Human Rights
2.5.1 Human rights before the ECHR

Certain fundamental rights and freedoms have been protected in English common law
since the signing of the Magna Carta (‘Great Charter’) by King John of England in 1215.
The Magna Carta set out many rights that might now be referred to as ‘human rights’
or fundamental principles of good government. For example, it established principles
of due process and equality before the law, and contained provisions forbidding
bribery and official misconduct.
The approach to human rights in English law has traditionally been one of negative
rather than positive protection. This is what is referred to as the ‘negative theory of
rights’, which says that citizens can do whatever they wish unless it is specifically
prohibited by non-retrospective laws which are clear and accessible to the governed.
The common law also constrained the power of government, ensuring that it acted
according to law and not in excess of its powers.
An example of protection of human rights prior to the ECHR or the HRA 1998 is the case
of R v Lord Chancellor ex p Witham [1998] QB 575. In this case the Lord Chancellor had
significantly increased the fees that litigants were required to pay in order to issue
proceedings in the civil courts to have a dispute decided by a judge. Previously, there
had been an exemption for people on low incomes to ensure that all people would
be able to have access to the courts. The new rules issued by the Lord Chancellor
removed this exemption for people suffering financial hardship and, on an action for
judicial review brought by Mr Witham, the High Court granted a declaration that the
Lord Chancellor had exceeded his statutory powers, because the effect of the increase
would be to exclude many people from access to the courts. In his decision Laws J said
that the right of access to the courts is a ‘constitutional right’ that cannot be displaced
except by Parliament:
It seems to me, from all the authorities to which I have referred, that the common law
has clearly given special weight to the citizen’s right of access to the courts. It has been
described as a constitutional right, though the cases do not explain what that means. In
this whole argument, nothing to my mind has been shown to displace the proposition
that the executive cannot in law abrogate the right of access to justice, unless it is
specifically so permitted by Parliament; and this is the meaning of the constitutional right.
Despite the provisions of Magna Carta and other rights protected under English
common law, since the passing of the Human Rights Act 1998 a wide range of
fundamental rights and freedoms are now positively protected by the Act, and the
jurisprudence of the European Court of Human Rights has had a significant impact on
English substantive law and on legal process. The protection of human rights is now
regarded as fundamental to the rule of law. For this reason we will deal with the ECHR
in some detail here, and throughout this module guide we will refer to the influence of
human rights legislation on the institutions and processes of the English legal system,
as well as on some areas of substantive law.
2.5.2 Human rights under the ECHR

The European Convention on Human Rights (ECHR) is an international treaty which was
drafted in 1950 and came into effect in 1953, having been signed by European nations
who were members of the Council of Europe, a body set up in Strasbourg in France
after the Second World War.

It is important to be very clear that the Council of Europe and the ECHR are completely
separate from the European Union. The Convention is not a piece of EU law. The UK will
continue to be bound by the ECHR even after it leaves the EU.
The UK was one of the first signatories to the Convention, which, as noted above,
entered into force in 1953. Some 47 countries have now signed up to the Convention,
including most of the east European and former communist countries, and several
countries that were once part of the Soviet Union. The countries that have signed the
Convention make up the Council of Europe.
The ECHR was a reaction to the horrors of the Second World War and reflected the
hope and belief that if nations joined together to agree to protect human rights the
likelihood of a recurrence would be reduced.
In 1998 the UK passed the Human Rights Act 1998, which incorporated directly into
English law the main provisions of the ECHR. This means that if a UK citizen believes
that the UK Government is in breach of its human rights obligations, a case can be
pursued in the English courts.
The European Court of Human Rights

The European Convention on Human Rights provides for individuals to bring
proceedings in the European Court of Human Rights in Strasbourg, France, if they
believe that a government is in breach of its obligations under the ECHR. The Court
was set up in 1959. You may often see references to ‘Strasbourg’ as shorthand for the
European Court of Human Rights.
This Court should not be confused with the Court of Justice of the European Union
(CJEU) in Luxembourg, which is responsible for ensuring that EU law is interpreted and
applied in the same way in every EU country, as well as ensuring that countries and EU
institutions abide by EU law.
The protected rights and freedoms

The purpose of the ECHR is the protection of fundamental rights and freedoms.
The Convention is divided into articles. Articles 2 to 14 set out the rights that are
protected by the Convention. Over the years the Convention has been supplemented
by a number of ‘protocols’ that have been agreed by the Council of Europe. Some of
the protocols just deal with procedural issues but some guarantee rights in addition
to those included in the Convention. Some of the most important rights and freedoms
protected under the ECHR are:
u right to life (Article 2)
u prohibition of torture (Article 3)
u prohibition of slavery and forced labour (Article 4)
u right to liberty and security (Article 5)
u right to a fair trial (Article 6)
u no punishment without law (Article 7)
u right to respect for family and private life (Article 8)
u freedom of thought, conscience and religion (Article 9)
u freedom of expression (Article 10)
u freedom of assembly and association (Article 11)
u prohibition of discrimination (Article 14)
u right not to be subjected to the death penalty (Articles 1 and 2 of Protocol 6)
u right to free elections (Article 3 of Protocol 1).

Derogation
These fundamental rights and freedoms are not all seen in the same way. Some are
absolute and inalienable, and cannot be interfered with by the state. Others are merely
contingent and are subject to ‘derogation’. That means that a signatory state can opt
out of them in particular circumstances. The absolute rights are those provided for in
Articles 2, 3, 4, 7 and 14. All the others are subject to potential limitations.
Margin of appreciation
Some of the difficulties in ensuring compliance with the ECHR by the 47 member
states of the Council of Europe are the diverse cultural and legal traditions of the
various states. To accommodate this, the European Court of Human Rights (ECtHR)
has developed the doctrine of a ‘margin of appreciation’ when considering whether
a member state has breached the Convention. It means that a member state is
permitted a degree of discretion, subject to the supervision of the European Court of
Human Rights, when it takes legislative, administrative or judicial action in the area of
a Convention right.
The doctrine allows the Court to take into account the fact that the Convention will
be interpreted differently in different member states, given their divergent legal
and cultural traditions. The margin of appreciation gives the ECtHR the necessary
flexibility to balance the sovereignty of member states with their obligations under
the Convention. In some circumstances – for example, national emergency or security
issues – member states may be permitted a ‘wide’ margin of appreciation by the
ECtHR. In other cases, for example in relation to discrimination, the Court will permit
only the narrowest margin of appreciation.
A case dealing with the margin of appreciation and one that received much publicity
is Lautsi v Italy (Application no. 30814/06), heard by the Grand Chamber of the ECtHR
in 2011. The applicant, an Italian citizen of Finnish origin, brought a complaint against
Italy on behalf of her two children. She alleged that the display of the crucifix in
classrooms of public schools interfered with her children’s freedom of belief as well
as their right to education and teaching consistent with her philosophical convictions
under Article 9, protection of freedom of religion and belief. The ECtHR ruled that the
presence of crucifixes in Italian public schools does not infringe states’ obligations
in relation to Article 9. Highlighting the importance of the margin of appreciation
principles, the Court confirmed that religious matters fall within the sovereignty
of member states in order to respect the culture and traditions of each particular
country.
Proportionality
Closely linked to the concept of the margin of appreciation is the principle of
‘proportionality’. This concept is the means by which state interference with human
rights is to be judged. Although it is accepted that sometimes the state may need
to restrict or interfere with a fundamental human right or freedom, the principle of
proportionality requires that such interference should be necessary and that it goes
no further than what is essential to achieve the objective. Thus, any measure by a
public authority that affects a basic human right must be: appropriate in order to
achieve the intended objective; necessary in the sense that there is no less severe
means of achieving the objective; and reasonable in the circumstances. In his Hamlyn
Lectures in 2013, Lord Justice Laws referred to the principle of proportionality as one of
‘minimal interference’. He said:
… every intrusion by the State upon the freedom of the individual stands in need of
justification. Accordingly, any interference which is greater than required for the State’s
proper purpose cannot be justified. This is at the core of proportionality; it articulates the
discipline which proportionality imposes on decision makers.
(See www.judiciary.gov.uk/announcements/speech-lj-laws-hamlyn-lecture-2013/)

In the case of de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands

and Housing [1999] 1 AC 69, Lord Clyde articulated the criteria that courts should adopt
to decide whether legislative interference with some fundamental right is arbitrary or
excessive. The court should ask itself whether:
1. the legislative objective is sufficiently important to justify limiting a fundamental

right
2. the measures designed to meet the legislative objective are rationally connected
to it; and
3. the means used to impair the right or freedom are no more than is necessary to
accomplish the objective.
Operation of the Human Rights Act 1998

Until the Human Rights Act 1998 came into force on 2 October 2000, UK citizens could
not enforce their rights under the Convention in the UK. It was necessary to first go
through all domestic appeals and then to apply to the European Court of Human
Rights in Strasbourg, France. The Human Rights Act made the Convention rights part of
English law in several ways.
It did this in a way that gave the Convention rights a central place in the law, while
aiming to preserve the constitutional principle of parliamentary sovereignty as much
as possible. In contrast to many other systems of human rights protection around
the world (for example, in Canada in relation to the Canadian Charter of Rights and
Freedoms 1982), the Human Rights Act does not enable judges to declare legislation
invalid if it is not compatible with Convention rights.
This works through the interplay between sections 3 and 4 of the Act. Section 3
protects human rights by requiring the courts to interpret statutes as far as possible
so that they are compliant with the Convention rights. But if this is not possible and
legislation is not compatible with Convention rights, the senior courts, instead of
having a power to ‘strike down’ legislation, can issue a ‘declaration of incompatibility’.
It is only the Supreme Court, the Court of Appeal and the High Court that have the
power to make the declaration. The declaration of incompatibility does not require
the government to change the law to make it compatible with human rights, but does
allow it to do so under an expedited procedure set out in section 10 of the Act. The
Human Rights Act therefore draws a careful balance between the protection of human
rights and the principle of parliamentary sovereignty. Sections 3 and 4 of the Human
Rights Act 1998 are discussed further in Chapter 8.
The Human Rights Act contains a number of different measures to strengthen the
protection of human rights. Many of these are discussed in later chapters of this
module guide. In brief, the structure of the Act is:
u Section 2: requires the English courts to take into account previous decisions of the
European Court of Human Rights. This relates to how the English courts interpret
the Convention itself (see Chapter 6).
u Section 3: requires all legislation to be read, so far as possible, to give effect to

the Convention rights. This relates to how the courts should interpret domestic
legislation so as to make it compliant with the Convention (see Chapter 8).
u Section 4: gives the courts a new power to issue a ‘declaration of incompatibility’

where any primary legislation conflicts with the Convention rights (see Chapter 8).
u Section 6: makes it unlawful for any public authority to act in a way that is
incompatible with the ECHR.
u Section 10: provides for a fast-track procedure for remedial legislation to be passed,
if this is necessary because a declaration of incompatibility has been issued (see
Chapter 8).
u Section 19: requires the government minister responsible for a Bill in Parliament to
make a written statement that the provisions of the Bill are compatible with the
Convention rights.

Possible changes to the Human Rights Act 1998?

In October 2014 the Conservative Party published controversial proposals for reform
of the relationship between the UK courts and the ECtHR: Protecting Human Rights in
the UK, October 2014. This brief document stated that if re-elected the Conservative
Party proposed to break the formal link between British courts and the ECtHR and that
in future Britain’s courts would no longer be required to take into account rulings
from the Court in Strasbourg: ‘The UK Courts, not Strasbourg, will have the final say
in interpreting Convention Rights, as clarified by Parliament.’ It was also suggested
that the government might leave the ECHR if it were not possible to achieve a ‘looser’
relationship with Strasbourg.
This was followed by a statement in 2015 by the then Conservative Prime Minister,
David Cameron, that he intended to repeal the Human Rights Act 1998 and replace
it with a British Bill of Rights. The most recent statement from the newly elected
government in 2019 was that they would ‘update the Human Rights Act…to ensure
that there is a proper balance between the rights of individuals, our vital national
security and effective government’.
An attempt to change the application of the Human Rights Act is likely to face
considerable opposition from politicians, the legal profession and human rights
organisations. In a speech in December 2014, the former Conservative Attorney
General Dominic Grieve QC argued that opting out of the ECHR would undermine
respect for international human rights law and would have ‘potentially devastating’
consequences for the UK (see Press Release: Speech by the Former Attorney General
Dominic Grieve MP to the Constitution Unit and Judicial Institute of UCL on 3 December
2014, at www.ucl.ac.uk/constitution-unit/news/2014/dec/press-release-speech-former-
attorney-gengeral-dominic-grieve-mp-constitution-unit-and).
On 9 May 2016, the EU Justice Sub-Committee published a report into the potential
impact of repealing the Human Rights Act on EU Law (European Union Committee,
‘The UK, the EU and a British Bill of Rights’, 12th Report of Session 2015–16, 9 May
2016, HL Paper 139, at https://publications.parliament.uk/pa/ld201516/ldselect/
ldeucom/139/13902.htm). The report raised serious concerns in connection with the
idea of replacing the Human Rights Act 1998 with a British Bill of Rights, stating that
this could have an impact on, for example, the UK’s international reputation in Europe
and more widely, as well as causing possible constitutional disruption in respect of the
devolved nations of Scotland, Wales and Northern Ireland.
2.6 Sources of law: the comparative context

The traditional sources of English law are therefore statutes and the common law,
with the more recent addition of the ECHR. We can think critically about this. Is it
necessary that these should be the sources of law? What are the sources of law in
other jurisdictions?
The sources of law in the English legal system can be compared with those in civil law
systems. Whereas common law legal systems are characterised by the importance of
case law and the decisions of judges in the courts, the principal sources of law in civil
law systems are legal codes and legislation. Courts in civil law systems will often refer
to decisions in previous cases for the purposes of consistency, but they do not rely on
the doctrine of binding precedent and so case law is not a formal source of law (see
further Chapter 5 on precedent).
Let us take the example of France, which has a civil law legal system. The main source
of law in France is legislation, comprising the constitution, treaties, statutes (lois) and
government regulations (reglèments). There is a hierarchical relationship between
these different types of legislation, with the constitution at the top of the hierarchy,
and government regulations at the bottom. So, for example, the French parliament
can only enact laws which are in accordance with the constitution, and there is a
court (the Conseil Constitutionnel) which ensures that statutes are not contrary to the
constitution. In the English legal system, there is no such formal hierarchy of laws.

Because of the principle of parliamentary sovereignty (discussed in Chapter 4), in the

English legal system, statutes are the highest form of law. Statutes, however, must
also be interpreted so far as possible in accordance with the European Convention on
Human Rights, although they cannot be invalidated even if they are not consistent
with the Convention rights. As we will see in Chapter 4, there is no unified, written
constitution at the apex of English law.
Parliamentary statutes in France generally have to go through a legislative process

which is in some ways similar to how statutes are passed in the UK parliament.
A government bill (projet de loi) must be approved by both houses of the French
parliament (the Assemblée Nationale and the Sénat). The President of the Republic must
then promulgate the bill, and it must be published in the Official Journal. Legislation
in the form of government regulations is the equivalent of secondary legislation in the
English common law system.
One way in which French law differs is in the fact that it is codified. The idea behind
codification in civil law systems is that the whole of the law should be accessible
within a single document, rather than piecemeal in different statutes or case law.
There are a number of different codes in the French legal system, each dealing with
different aspects of law, such as the Civil Code, the Civil Procedure Code and the
Commercial Code. But not everything is contained in these codes; there are also
other separate pieces of legislation, which either amend the codes or which are
independent of them. Codification is not a feature of common law systems in the
same way; there is no one civil code in English law setting out the law of contract, for
example. There are statutes that consolidate certain areas of law, but these do not
attempt to be comprehensive in the same way as in a civil law system.
Codification brings with it certain advantages and disadvantages:
u codified laws are arguably easier to access and to understand; this makes it easier
for ordinary citizens to know what the law is
u codification of laws enhances certainty and consistency, as the process of drafting a

code involves thinking about laws in a logical and systematic way
u even in civil law legal systems, codes may not give a complete picture of the law; in
modern times there is a multiplicity of sources of law
u codification arguably leads to law not being sufficiently amended and updated.
Case law is not a formal source of law in France and, in contrast to England, there is no
system of binding precedent. The role of judges in France is to interpret and apply the
law, not to create it. In practice, however, French judges do make legal rules and may
follow previous precedents if they choose to do so, and this adds to legal certainty. In
fact, even though case law is not a formal source of law in France, some areas of law
are based on decisions of the judges in courts, for example, administrative law.
2.7 The impact of further international law

By international law, we are talking here about what is termed ‘public international
law’, the law that governs the relationship between different states (countries). There
is also a different branch of international law called ‘private international law’, which is
the law that regulates private relationships across international borders: for example,
when a company in one country wants to sell a product in a different country. That
type of law is not included in our discussion. Nor does this section include the
European Convention on Human Rights, which has a particular impact on English law,
which has already been discussed above.
Much of public international law is related to the work of the United Nations or one
of its specialised agencies. The United Nations (UN) is an international body, formed
in 1945, and currently made up of 193 member states. It works on issues that affect
the world community, such as peace and security, climate change, sustainable
development and human rights. The UN makes laws in the form of treaties, which

are agreements made in writing between states: for example, the Convention on the
Rights of the Child, the United Nations Framework Convention on Climate Change and
the Charter of the United Nations itself. There are additional sources of international
law, such as customary law and general principles of law.
International law is not directly a source of English law. England has what is called
a ‘dualist’ system, which means that international treaties must be expressly
incorporated into the UK’s legal system by legislation in order for them to be given
legal effect. Ratification (a formal agreement to be bound) of a treaty by the UK at the
international level is not sufficient for the treaty to be of legal effect in English courts;
it must also be incorporated. This is how the European Convention on Human Rights
has come to be part of English law – it has been incorporated by the Human Rights
Act 1998 (as already discussed). There are many international treaties that the UK has
ratified but which it has not incorporated into English law, and so these treaties do
not have any direct effect as a source of law. Nonetheless, the English courts may still
consider treaties that have not been incorporated as an aid to assist with issues that
are before them, for example, the interpretation of a statute. So international treaties
can indirectly have an influence on domestic law.
This is in contrast to the French legal system, in which international treaties are a
source of law. Treaties that have been ratified by the French state have precedence
over domestic statutes (under Article 55 of the French constitution). The courts have
the power to declare that statutes are inconsistent with a treaty, and to apply the
treaty rather than the statute to the case before the court.
2.8 Law reform

You now understand the different ways in which the law is made. But how is the
law reformed, and why is it necessary to reform the law? Understanding law reform
facilitates an understanding of how existing law is changed.
Judges in the courts change legal rules and principles incrementally through the
common law, but cannot constitutionally undertake wholesale reform of the law.
Parliament can reform the law but this is often in a somewhat ad hoc manner, in
response to political or media pressure. Occasionally, ad hoc committees are set up to
review certain aspects of the law, such as the Woolf review of the civil justice system
in 1996 (discussed in Chapter 15) or the Leggatt review of tribunals in 2001. In addition,
the Civil Justice Council has responsibility for advising the Lord Chancellor and the
judiciary on the development of the civil justice system; it was established under the
Civil Procedure Act 1997.
The main responsibility for advising on law reform lies, however, with the Law
Commission of England and Wales. The Law Commission was established by statute,
the Law Commissions Act 1965 (along with the Scottish Law Commission). Its statutory
function is set out in section 3(1):
It shall be the duty of each of the Commissions to take and keep under review all the law
with which they are respectively concerned with a view to its systematic development and
reform, including in particular the codification of such law, the elimination of anomalies,
the repeal of obsolete and unnecessary enactments, the reduction of the number of
separate enactments and generally the simplification and modernisation of the law …
The Commission’s overall function is therefore to keep the law as a whole under
review and to make recommendations for its reform to ensure it is as fair, modern,
simple and cost-effective as possible. A key aspect of the Commission is that it is
independent of government. It operates by drawing up programmes of law reform
every three to four years (under section 3 of the Law Commissions Act 1965) and
sometimes law reform projects are also referred directly by government departments.
The Thirteenth Programme of Law Reform was published on 14 December 2017 and
includes projects on a diverse range of legal topics:
u a modern framework for disposing of the dead

u administrative review
u automated vehicles
u electronic signatures
u employment law hearing structures
u modernising trust law for a global Britain
u registered land and chancel repair liability
u residential leasehold
u simplifying the immigration rules
u smart contracts
u surrogacy.
The Commission researches the current law and its perceived defects and carries
out research into the law in other jurisdictions. A consultation paper with suggested
solutions is issued for consultation among interested bodies. At the end of a law
reform project, a final report with final recommendations for law reform is submitted
to the Lord Chancellor.
The Commission is only an advisory body; it cannot make the law, and the
government does not have to implement the Commission’s recommendations for
law reform. However, following a Protocol agreed between the Law Commission
and the government in 2010, once the Commission has published a final report,
the government must then provide a response within a year. And under the Law
Commission Act 2009, the Lord Chancellor must report to Parliament annually on the
government’s progress on the implementation of reports. These measures were a
response to the government’s non-implementation, or delay in implementation, of
many Law Commission reports.
Legislation following from Law Commission reports includes the Contracts (Rights of
Third Parties) Act 1999, the Land Registration Act 2002 and parts of the Criminal Justice
and Courts Act 2015. Many of the Commission’s reports are not implemented, however,
and do not become law (a table of implementation information can be seen on the
Law Commission’s website at www.lawcom.gov.uk/our-work/implementation/table/).
This remains a criticism of the role of the Law Commission: that its recommendations
are reliant on implementation by Parliament and so many may never become law.
Even where proposals are enacted as law, this often takes a long time, by which time
society and the law may have moved on.
In a lecture in 2017, the then Lord Chief Justice, Lord Thomas, noted two issues of
importance for the Law Commission in the future:
u amendments to the law as a result of Brexit, which will require law reform on a
considerable scale given the close integration of EU law into domestic law
u changes to modern society resulting from digitisation, including social media and
the internet, as well as concepts of ownership, of contract, of employment status
and rights, of intellectual property rights, and consumer rights.
The Law Commission model has been replicated in countries around the world – for
example, New Zealand, Australia, India and Hong Kong, all of which have similar law
reform bodies.

1. Explain in your own words how Acts of Parliament are made.
2. What is the difference between primary and secondary legislation?
3. What does it mean to say that England and Wales is a common law system?
4. Explain the principle of ‘margin of appreciation’ in the interpretation of ECHR

rights by the European Court of Human Rights.
5. Name three ways in which the Human Rights Act 1998 protects human rights.
6. Explain some advantages and disadvantages of replacing the Human Rights Act
1998 with a British Bill of Rights.
7. What are some of the advantages and disadvantages of codification?
8. Name one way in which sources of law in France are similar to those in England,
and one way in which they are different.
9. What is the function of the Law Commission? Explain in your own words.

Notes

3 Historical development of the common law
Contents
3.1 The importance of the historical context . . . . . . . . . . . . . . . . . 33
3.2 The development of the common law . . . . . . . . . . . . . . . . . . 33
3.3 The development of equity . . . . . . . . . . . . . . . . . . . . . . . . 34

Learning outcomes
u describe the historical development of the legal system
u explain the importance of the historical development of English law.
Essential reading
¢ Zweigert and Kötz, Chapter 14 ‘The development of the English common law’
¢ Lord Justice Bingham ‘The future of the common law’, Civil Justice Quarterly 18
(Jul) 1999, pp.203–17 (available through Westlaw in the Online Library).
Further reading
¢ Germain’s French law guide – History, at www.llrx.com/2001/08/
features-germains-french-law-guide/#history

Legal system and method 3 Historical development of the common law page 33
3.1 The importance of the historical context

The historical development of English law through the common law has profoundly
shaped the legal system. Where civil law jurisdictions have tried to organise law
into rationally ordered codes, English law has resisted this trend, and has remained
wedded to the more unruly and perhaps less logical system of common law, resisting
the trend of codification in other jurisdictions. The common law of today can trace its
roots directly and closely back to historical common law.
This has had a great impact on legal thought as a whole in the English legal system.
English law is concrete, not abstract. The law is based on real cases, with particular fact
patterns, that come before the courts. The English courts do not consider hypothetical
cases and as a rule the courts do not speculate on what the law should be in an
abstract manner. English law develops incrementally, from case to case, as justice
requires. This can be contrasted with civil law systems, where the legal system has
been constructed more theoretically, in codes that are intended to set out a complete
and comprehensive set of legal principles, with universal rules that can (at least in
theory) be applied to any case.
We can see the importance of the historical context of the English legal system by
comparing it with the development of civil law systems, which had quite different
historical contexts, and which therefore developed quite different legal systems.
Let’s continue with the example of France, which we started in Chapter 2. We saw
how French law is based on a hierarchy of legal sources, which include the French
Constitution and a series of codes; case law is not a formal source of law. Several
factors differentiate the history of English law from that of French law.
u Unlike English law, French law was heavily influenced by Roman law, and in
particular by the Corpus Juris Civilis, a legal code instituted by the Roman Emperor
Justinian in the 6th century.
u France experienced major political upheaval during the French Revolution of 1789
and in the years that followed. This led to the promulgation of the Code Civil in
1804, which sought to eradicate the law of the past and to replace it with new law
reflecting new values and the new social order. In contrast, England had no similar
period of radical political, social and legal upheaval.
u In England, traditionally legal practitioners had the greatest influence on the

development of the law, and meant that it developed in a concrete and practical
way. In France, however, the law was influenced by legal scholars and teachers,
who thought about law in a rational and more scientific way, which led to the
development of more abstract legal principles.
3.2 The development of the common law

It is possible to date the modern development of the English common law back to
the time of William the Conqueror, who invaded England in 1066. Before the Norman
Conquest of England in 1066, there was no unitary, national legal system. The English
legal system involved a mass of oral customary rules, which varied according to region.
Each county or shire had its own local court dispensing its own justice in accordance
with local customs that varied from community to community and were enforced,
sometimes in a rather arbitrary fashion, by local lords or landowners. These local
courts are not what we would recognise as courts today.
William, as King of England, laid the foundations of the legal system. He understood
that in order to exercise real power over citizens he needed a central system of justice
over which the king had control and that had laws that would be obeyed. He did this
by creating what was called the Curia Regis – King’s Court. It was a court of law but
also a royal household comprising the King and his advisers, who were a mixture of
powerful militarised landowners and learned clerics (religious men in holy orders).
The King and his court travelled around the country and citizens would bring their

grievances to be considered by the King and his advisers, after which judgment would
be given. This activity was the beginning of the common law system.
Probably the most important contributor to the development of the common law was
Henry II, who came to the throne in 1154 after a long period of disruption and civil war.
Henry took the throne wanting to regain stability, reform land law and deal with
rampant crime. He focused on creating a single system of justice for the entire country
that would be under the control of the king. At this time there were only 18 judges
available to dispense justice. In 1166, Henry ordered five to remain in Westminster
in London to deal with the cases that he would previously have decided, and the
remaining judges were sent out to travel to different parts of the country. These were
the ‘travelling justices’. Their responsibility was to decide grievances, complaints and
accusations, applying the laws that had been developed by judges in Westminster. In
this way, local laws were replaced by new national laws that were common to all – in
other words, the common law.
In time, the decisions of the judges were written down. As the decisions of these
courts came to be recorded and published, so the practice developed where past
decisions (precedents) would be cited in argument before the courts and would be
regarded as being ‘authority’ for the application of pre-existing legal principles.
Common law courts grew up gradually as offshoots of the authority of the King and, as the
very word ‘court’ indicates, these courts of justice were originally a part of the Royal Court.
They were not created by law in order to administer pre-existing laws. They were created,
or grew up, in order to solve pressing practical questions – to dispose of arguments, to
solve disputes, and to suppress violence and theft. As they developed into what we would
today recognise as courts of law, they actually created the law as they went along.
Eventually their decisions began to fall into regular and predictable patterns, people
began to take notes of what the judges were deciding, and in due course there emerged
the modern ‘law reports’.
(Atiyah, P.S. Law and modern society. (Oxford: Oxford University Press, 1995) second edition
[ISBN 9780192892676])
3.2.1 The contribution of common law to social order: the tranquillity of

the state
The content of most of the law at the time that the foundations of the common
law were being laid was directed at preventing bloodshed by recognising rights
to property and personal freedom. Until the 12th century, the vendetta had been
an integral part of English life. But the ending of bloody feuds in England roughly
coincided with the establishment of the King’s Courts in the 12th century. They not
only punished criminals, but provided a peaceful means of resolving disputes over
land and other property. The Courts offered a service to the public. Instead of solving
disputes by violence, a judge would rule on rights and wrongs and offer a remedy.
In the resolution of disputes over land, contracts and debts, as well as dealing with
criminal offences, the Courts were supporting social order and the tranquillity of the
state. The ability to ‘resort’ to law is preferable to the ability to ‘resort to violence’
and this is part of the critical social function of law. As we will see in Chapter 16 and
the discussion about the need for access to justice, some will argue that if citizens
are denied access to the courts they will ‘take the law into their own hands’. Those
concerns are similar to those of Henry II some 800 years ago.
3.3 The development of equity

The word ‘equity’ means fair or just in its wider sense, but its legal meaning refers to
legal rules that were developed by the courts to overcome some of the inflexibility of
the rules and procedures of common law courts.
By the 15th century, the procedures of the common law courts had become slow,
expensive and very technical, with a lack of satisfactory remedies. Despite the

Legal system and method 3 Historical development of the common law page 35
development of common law courts between the 12th and 15th centuries, the King
himself continued to be a source of English law. Citizens petitioned the King to ‘redress
their grievances’, which meant pleading with him directly to hear complaints and
provide a remedy. For a time the King dealt with these petitions himself, but as the
workload increased, he passed them to his senior legal adviser, the Chancellor (who
was always a cleric), as the ‘Keeper of the King’s Conscience’. The King, through his
Chancellor, eventually set up a special court, the Court of Chancery, to deal with
these petitions on the basis of what was morally right. The Chancellor would give or
withhold relief, not according to any precedent, but according to the effect produced
upon his own individual sense of right and wrong by the merits of the particular case
before him. In 1474 the Chancellor issued the first decree in his own name, which
began the independence of the Court of Chancery from the King’s Council and the
development of a system of legal principles known as ‘equity’, which was different
from the common law.
Equity created new rights, for example, by recognising trusts (somebody holding legal
title on behalf of another (‘beneficiary’) and giving beneficiaries rights against trustees.
The common law did not recognise such a device and regarded the trustees as owners.
Equity also created new remedies. If the Chancellor was convinced that a person had
suffered a wrong, the Court would grant a remedy (that is, they would devise some
way to ensure that something was done to put right the wrong that had been done to
the person). In this way, equity created new remedies that were not available in the
common law courts. At common law, the main remedy that a person could obtain was
the remedy of money compensation or damages. However, in equity more flexible
remedies were developed, such as specific performance, which is an order telling
a party to perform their part of a contract, or injunction, usually an order to stop a
person doing a particular act, like acting in breach of contract.
In time, however, the procedures of the Court of Chancery became expensive and it
took a long time for cases to be dealt with by a judge and for a decision to be given.
By the 19th century, the Court was the subject of considerable criticism. It was around
this time that the famous English author Charles Dickens wrote his novel Bleak House,
which was deeply critical of the procedures of the Court of Chancery.
This is the Court of Chancery, which has its decaying houses and its blighted lands in every
shire, which has its worn-out lunatic in every madhouse and its dead in every churchyard,
which has its ruined suitor with his slipshod heels and threadbare dress borrowing and
begging through the round of every man’s acquaintance, which gives to monied might
the means abundantly of wearying out the right, which so exhausts finances, patience,
courage, hope, so overthrows the brain and breaks the heart, that there is not an
honourable man among its practitioners who would not give – who does not often give –
the warning, ‘Suffer any wrong that can be done you rather than come here!’
(Extract from Chapter 1 of Bleak House by Charles Dickens)
In 1873, the common law courts and courts of equity were combined in the Judicature
Acts 1873–75. Before this, equity and the common law had coexisted uneasily in a
parallel situation, until the Earl of Oxford’s Case (1615), when it was held that equity
prevailed over the common law in the event of a conflict.
Although one of the divisions of the High Court is still called the Chancery Division, all
courts now deal with both common law and equitable principles and remedies. The
Chancery Division of the High Court deals with company law, conveyancing, property,
wills and probate, all of which are heavily influenced by equity. Equity has added new
principles to the body of common law and remedies for those who have suffered an
injustice.

1. Who were the ‘travelling justices’ and what was their role?
2. Where did the term ‘common law’ come from?
3. How did precedents first come to be recognised?
4. In what way did the development of the common law support social order?
5. How did the development of equity mitigate some of the problems that had
developed in the common law?
6. Name and explain an equitable remedy.
7. Which areas of law remain heavily influenced by equity?
8. Write a short paragraph explaining why the historical development of English

law is important.

4 The constitution and the legal system
Contents
4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
4.2 The British Constitution . . . . . . . . . . . . . . . . . . . . . . . . . 39
4.3 Constitutional principles . . . . . . . . . . . . . . . . . . . . . . . . . 40

Learning outcomes
u outline the fundamental principles of the Constitution
u explain the essential requirements of the rule of law
u explain the importance of judicial independence to the rule of law.
Essential reading
¢ Slapper and Kelly, Chapter 2 ‘The rule of law and human rights’ (available in
VLeBooks via the Online Library).
¢ Lord Phillips ‘Judicial independence’, lecture at the Commonwealth Law

Conference, Nairobi, 12 September 2007, at www.judiciary.uk/wp-content/
uploads/JCO/Documents/Speeches/lcj_kenya_clc_120907.pdf
¢ Parliament website explanation of parliamentary sovereignty, at https://www.

parliament.uk/site-information/glossary/parliamentary-sovereignty/
¢ Short video introduction to the rule of law by Professor Jeffrey Jowell, Inaugural
Director of the Bingham Centre for the Rule of Law, at www.youtube.com/
watch?v=wgVAyYzhHd0
¢ World Justice Project resources on the rule of law, at http://worldjusticeproject.

org/what-rule-law

¢ United Nations ‘Basic Principles on the Independence of the Judiciary’, at
www.ohchr.org/EN/ProfessionalInterest/Pages/IndependenceJudiciary.aspx
Further reading
¢ Parliamentary briefing on separation of powers, 16 August 2011, at https://
researchbriefings.parliament.uk/ResearchBriefing/Summary/SN06053
¢ Undergraduate Laws Blog ‘Constitutional statutes’, 16 March 2015, at

http://lawsblog.london.ac.uk/2015/03/16/constitutional-statutes/
¢ Lord Bingham ‘The rule of law’, The sixth Sir David Williams lecture, November
2006, at www.cpl.law.cam.ac.uk/sites/www.law.cam.ac.uk/files/images/www.
cpl.law.cam.ac.uk/legacy/Media/THE%20RULE%20OF%20LAW%202006.pdf
¢ ‘Commentary on the Bangalore Principles of Judicial Conduct’, United Nations

Office on Drugs and Crime, September 2007, at www.unodc.org/documents/
corruption/publications_unodc_commentary-e.pdf
¢ Tamanaha, B.Z. ‘The history and elements of the rule of law’, Washington
University in St. Louis, Legal Studies Research Paper No. 12-02-07, 1
March 2012, revised 25 April 2013, at http://papers.ssrn.com/sol3/papers.
cfm?abstract_id=2012845

Legal system and method 4 The constitution and the legal system page 39
4.1 Introduction
How do fundamental constitutional principles relate to the study of the legal system?
Constitutional principles are at the core of being able to understand and assess the
legal system. For example, we can assess the extent to which the institutions and
processes of the legal system meet the requirements of the fundamental principle of
the rule of law. The rule of law is so central to the legal system that it has now been
noted in statute. Section 1 of the Constitutional Reform Act 2005 (CRA 2005) states that:
This Act does not adversely affect—
(a) the existing constitutional principle of the rule of law, or
(b) the Lord Chancellor’s existing constitutional role in relation to that principle.
The constitutional principle of separation of powers has driven recent changes to the
operation of the judiciary, again in the CRA 2005. The Act altered the role of the Lord
Chancellor and created a new UK Supreme Court (UKSC), in response to concerns that
the previous arrangements contravened the separation of powers. This will be discussed
further in Chapter 12. And parliamentary sovereignty is at the heart of the tension
between the role of the judges and that of Parliament, especially in the context of the
Human Rights Act 1998, and you will consider this at different stages of the module.
4.2 The British Constitution

When we talk of a country’s ‘constitution’ we are referring to the way in which a
country is governed and the way that power is organised and distributed. Most
countries, such as the USA, Germany, India and, more recently, South Africa, have
written constitutions in which the rules for the governance of the country are laid
down in a single document and are specially protected so that changes to those
rules are virtually impossible to make. In the UK there is no written constitution
which explains in one single document how power is divided and exercised. Instead,
constitutional rules and principles are scattered over a range of written and unwritten
materials. The Human Rights Act 1998 is not a written constitution, but is a single set of
rules guaranteeing fundamental freedoms and rights, and one of a small set of statutes
that are so significant to the UK’s constitutional arrangements in terms of what they
deal with that they have been called ‘constitutional statutes’ (see further discussion
later in this chapter about constitutional statutes).
The unwritten constitution of the UK has developed over many hundreds of years,
and the rules relating to governance can be found in statutes, common law, custom
and what are known as constitutional conventions, which are long-standing practices
that are so widely recognised they have essentially become unwritten rules. So
when it is said that the UK does not have a written constitution, it is perhaps more
accurate to say that the UK Constitution is partly written (in statutes and common law
precedents), but that it is largely ‘uncodified’.
When assessing the UK Constitution and its place in the legal system, it is interesting
to compare it in some detail with written constitutions, and to ask what the
advantages and disadvantages of written and unwritten constitutions are. In fact, the
UK Constitution is an exception to the majority of constitutions around the world,
which are in a codified format (although New Zealand and Israel also have unwritten
constitutions). Let’s consider as an example the written constitution of Germany.
The German Constitution is the Basic Law (the Grundgesetz), which was created in
1948. It was originally created for West Germany, but when East and West Germany
were unified in 1990 it was extended to cover the whole of the country. As well as the
Basic Law, there are some separate constitutional principles, for example, about the
separation of powers. The codified German Constitution is available to all citizens
to read, and includes sections on basic rights and a structure of state organisation
and administrative law. If you want to get a flavour of what the written German
constitution contains, you can have a look at it in English on the following website:
www.gesetze-im-internet.de/englisch_gg/index.html

One advantage of the UK’s unwritten constitution is that it is more flexible than written
constitutions, so can adapt where necessary. However, the downside of this is that it can
be easier for the state to abuse its powers and pass laws that breach citizens’ rights. An
unwritten constitution also makes it more difficult for citizens to access and understand
the fundamental laws that govern them; unlike in Germany, people in the UK cannot
readily access a single text that sets out the constitution. Written constitutions, however,
may be difficult to amend to keep up with modern society, and the drafters must
attempt to make them comprehensive, to cover all constitutional eventualities.
4.3 Constitutional principles

In the unwritten British constitution, three of the most important principles are:
1. parliamentary sovereignty
2. separation of powers
3. rule of law.
4.3.1 Parliamentary sovereignty

Parliamentary sovereignty is a fundamental principle of the unwritten constitution,
and indeed it is the most important. This principle makes Parliament the supreme
legal authority in the UK, which can create or repeal any law. Generally, the courts
cannot overrule its legislation and no Parliament can pass laws that future Parliaments
cannot change. In the orthodox theory, there is both a positive and negative aspect to
parliamentary sovereignty.
The positive limb: Parliament can make or unmake any law. In legal terms, Parliament
can choose to make any law whatsoever (although there will of course still be political
constraints). There is no distinction between ‘ordinary’ and ‘constitutional’ law; all
statutes are passed in the same way.
The negative limb: the legality of an Act of Parliament cannot be challenged in any
court, and the courts cannot declare statutes to be invalid. This is unlike some other
jurisdictions, in which legislation can be ruled invalid if it is contrary to the constitution.
The orthodox view of parliamentary sovereignty originates from the British

constitutional theorist Albert Venn Dicey, and was set out in his seminal book, An
introduction to the study of the law of the constitution, in the 1880s.
Since that time, there have been legal developments that have gradually challenged
this traditional conception of parliamentary sovereignty. One is the beginning of
classification of some statutes as ‘constitutional statutes’ by the courts. In Thoburn
v Sunderland CC [2002] EWHC 195 (Admin), [2003] QB 151, Laws LJ suggested that: ‘We
should recognise a hierarchy of Acts of Parliament: as it were “ordinary” statutes and
“constitutional” statutes’ [para.62]. This concept of special constitutional concepts
was accepted by the Supreme Court in R (HS2 Action Alliance Ltd) v Secretary of State for
Transport [2014] UKSC 3.
Any law passed by Parliament takes precedence over common law, and where there is
a conflict between statute and common law, ‘the statute will prevail’. The statute will
be deemed to have overruled the pre-existing common law.
4.3.2 Separation of powers

Within the modern state there are three main centres of power:
1. the legislature: responsible for making new laws (in the UK, this is Parliament)
2. the executive, which is responsible for implementing the law and running the
country – in other words, the government.
3. the judiciary, which are responsible for determining legal disputes and interpreting
legislation passed by the legislature.

The separation of powers between the three branches of the state rests on the idea
that a division of power prevents the accumulation of too much power in the hands of
one body or person and provides a system of ‘checks and balances’. One of the earliest
statements of the separation of powers was given by the French political thinker
Montesquieu in 1748:
When the legislative and executive powers are united in the same person, or in the same
body of magistrates, there can be no liberty…there is no liberty if the power of judging is
not separated from the legislative and executive…there would be an end to everything, if
the same man or the same body…were to exercise those three powers.
(Montesquieu The spirit of laws. (c.1748))
Thus, for example, the judiciary are responsible for checking that the executive
governs according to law – that it does not exceed its lawful powers.
The legislature is responsible for creating new laws; however, the judiciary are
responsible for the interpretation of that law. The judiciary are independent of the
legislature and executive, and are not subject to interference by the government.
Changes to the English constitution under the CRA 2005 were introduced to
strengthen the formal separation of powers. The Act created a separate Supreme
Court, and the Lord Chief Justice replaced the Lord Chancellor as head of the judiciary
in England and Wales. It placed a statutory duty on ministers to uphold judicial
independence and made provision for the establishment of an independent Judicial
Appointments Commission. This is a clear example of how the constitutional principle
of separation of powers has affected the legal system in practice.
The separation of powers principle is recognised in other legal jurisdictions. For

example, in the USA, there is an elaborate system of checks and balances which aims
to limit the individual powers of the three branches by keeping them separate, with
the ability to control the exercise of the other branches of government in certain
circumstances. To continue with the example of Germany, the separation of powers
is implied in the Basic Law (Article 20) and affects the operation of the German legal
system. For example, under the Basic Law (Article 137), a member of the German
parliament cannot be, at the same time, a judge or a civil servant.
4.3.3 Rule of law

The rule of law is a critical constitutional concept which is used to describe the factors
necessary for a well-functioning or healthy state and, in particular, to constrain the
exercise of arbitrary power.
However, there is no one single definition of the rule of law, and its content has been
contested and different definitions elucidated by different legal thinkers. At its most
basic, the rule of law dictates: (a) that a citizen should only be punished if it is proved
in court that they breached a law, so that people cannot be punished arbitrarily; and
(b) that no person is above the law, and everyone is equal before the law. This means
that the law applies to everyone regardless of social, economic or political status or,
indeed, wealth.
The idea of the rule of law was known to philosophers such as Aristotle, writing around
300 years BCE, but the British constitutional theorist Albert Venn Dicey, writing in the
19th century, popularised the concept. Dicey conceived of the rule of law as having
three parts:
u People can only be punished for a specific breach of the law established by the
ordinary courts following a proper procedure.
u No-one is above the law. This includes equality between men and women but also
among the hierarchical structures of society.
u Constitutional principles are a product of the common law.
Dicey’s theory is about the form of the law: the process by which it is made and how it
is applied. Other theories of the rule of law go further and attempt to encompass what

the substance or content of the law should be, for example, that laws should respect
fundamental human rights.
One of the most influential contemporary formulations of the rule of law was offered
in 2006 by Lord Bingham, a famous English judge. Lord Bingham’s articulation of the
fundamental principle of the rule of law is that:
… all persons and authorities within the state, whether public or private, should be bound
by and entitled to the benefit of laws publicly made, taking effect (generally) in the future
and publicly administered in the courts.
Lord Bingham then set out eight essential ‘ingredients’ of the rule of law.
1. The law must be accessible, intelligible, clear and predictable.
2. Questions of legal right and liability should normally be resolved by the application
of law rather than the exercise of discretion.
3. The laws of the land should apply equally to all, except where objective differences
justify differentiation.
4. The law must give adequate protection to human rights.
5. Some means should be provided for the resolution of civil disputes that do not
involve excessive cost or delay.
6. Ministers and public officers must exercise their powers reasonably, in good faith,
for the purpose for which the powers were conferred and without exceeding the
limits of such powers.
7. The adjudicative procedures provided by the state should be fair.
8. The state must comply with its obligations in international law.
Bingham’s theory of the rule of law is mostly concerned with the form of the law,
but does have something to say about the content of the law: it must give adequate
protection to human rights and must comply with international law obligations.
The importance of the rule of law

The World Justice Project assesses the extent to which different states around the
world meet the requirements of the rule of law. It is a well-regarded and authoritative
independent organisation which works to advance the rule of law worldwide. Its
annual Rule of Law Index measures the rule of law based on the experiences and
perceptions of the general public and in-country experts worldwide, using surveys in
126 countries. The Index is the leading source for original data on the rule of law.
The World Justice Project has argued that the rule of law matters because:
… it is the underlying framework of rules and rights that make prosperous and fair
societies possible. The rule of law is a system in which no one, including government, is
above the law; where laws protect fundamental rights; and where justice is accessible
to all…Where the rule of law is weak, medicines fail to reach health facilities, criminal
violence goes unchecked, laws are applied unequally across societies, and foreign
investments are held back. Effective rule of law helps reduce corruption, improve public
health, enhance education, alleviate poverty, and protect people from injustices and
dangers large and small. Strengthening the rule of law is a major goal of governments,
donors, businesses, and civil society organizations around the world.
(World Justice Project, Introduction to Rule of Law Index 2014, at http://

worldjusticeproject.org/sites/default/files/files/introduction_key_findings.pdf)
According to the World Justice Project, rule of law systems are those in which four
universal principles are upheld:
1. The government and its officials and agents, as well as individuals and private
entities, are accountable under the law.
2. The laws are clear, publicised, stable, and just; are applied evenly; and protect
fundamental rights, including the security of persons and property.

3. The process by which the laws are enacted, administered, and enforced is
accessible, fair, and efficient.
4. Justice is delivered in a timely fashion by competent, ethical and independent

representatives and neutrals who are of sufficient number, have adequate
resources, and reflect the makeup of the communities they serve.
(http://worldjusticeproject.org/what-rule-law)
It is arguable that in the absence of these rule of law protections, societies may be
vulnerable to the use of arbitrary power, totalitarianism and corruption.
On the other hand, some modern legal scholars have argued that the concept of
the rule of law has become so vague and all-encompassing that it has lost any real
meaning. As Brian Tamanaha (2012, p.236) has commented:
It is necessary to maintain a sharp analytical separation between the rule of law,
democracy and human rights, as well as other good things we might want, like health and
security, because mixing all of these together tends to obscure the essential reality that a
society and government may comply with the rule of law, yet still be seriously flawed or
wanting in various respects. Or to put the crucial point another way, the rule of law may
be a necessary element of good governance and a decent society, but it is certainly not
sufficient.
The requirements for the rule of law, as set out by the World Justice Project, are
demanding and wide-ranging. In addition to constitutional principles, the World
Justice Project argues the need for well-functioning civil and criminal justice systems
and alternative forms of dispute resolution, which are regarded as evidence of a well-
developed legal culture underpinned by rule of law values.
In this module, we examine the English civil and criminal justice systems in light of rule
of law standards. One important area, for example, is the effect of recent changes to legal
aid on access to justice and the rule of law. Throughout the study of the module, it is
important to consider the extent to which the institutions and processes of the English
legal system, and indeed the institutions and processes of other jurisdictions, meet the
rule of law requirements set out by Lord Bingham and the World Justice Project.
This is a good example of the impact of constitutional principles on the workings, or

at least the aspirations, of the legal system. For many societies and justice systems,
these requirements are aspirational. But although a society may not yet meet all of
the requirements, striving to achieve rule of law objectives and to embed rule of law
values is likely to guard against arbitrary government and defective justice systems.
As Lord Bingham said:
The concept of the rule of law is not fixed for all time. Some countries do not subscribe to
it fully, and some subscribe only in name, if that. Even those who do subscribe to it find it
difficult to apply all its precepts quite all the time. But in a world divided by differences
of nationality, race, colour, religion and wealth it is one of the greatest unifying factors,
perhaps the greatest, the nearest we are likely to approach to a universal secular religion.
It remains an ideal, but an ideal worth striving for, in the interests of good government
and peace, at home and in the world at large.
(Bingham, T. ‘Epilogue’ in his The rule of law (London: Penguin, 2011)

[ISBN 9780141034539])
The independence of the judiciary

An essential element in the operation of the rule of law is an independent judiciary.
This is implicit in Lord Bingham’s eight principles, although not spelled out explicitly.
The Bangalore Principles of Judicial Conduct (adopted in 2002) set out a code of
judicial conduct which has been accepted widely around the world. The Bangalore
Principles were drafted by the Judicial Group on Strengthening Judicial Integrity, made
up of chief justices and superior court judges from around the world. According to the
United Nations, ‘the Bangalore Principles of Judicial Conduct are seen more and more
as a document which all judiciaries and legal systems can accept unreservedly’.

The first of the Bangalore Principles states:

Judicial independence is a prerequisite to the rule of law and a fundamental guarantee of
a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its
individual and institutional aspects.
In its commentary on the Bangalore Principles, the United Nations Office on Drugs
and Crime notes that judicial independence is a responsibility imposed on each judge
to enable him or her to adjudicate a dispute honestly and impartially on the basis
of the law and evidence, without external pressure or influence and without fear of
interference.
Judicial independence means that individual judges and the judiciary as a whole
should decide cases according to law, free from interference by the executive and
separate from the legislature. No outsider – be it government, pressure group,
individual or even another judge – should interfere, or attempt to interfere, with
the way in which a judge conducts a case and makes a decision. Judges should be
both impartial and independent of all external pressures and of each other. This is
important for public confidence in the judiciary and for the proper functioning of the
justice system according to law. Improper pressure could be exerted by the executive,
the legislature, litigants, pressure groups, the media or, indeed, more senior judges.
Judges are required to decide cases only on the evidence presented in court by the
parties and in accordance with the law.
As will become clear in later chapters of this module guide, the constitutional position
of the judiciary in relation to both the legislature and executive is a live and often
controversial issue. There is considerable scholarly debate about the question of the
extent to which the role of the judiciary in interpreting legislation and developing the
common law overlaps with the responsibility of the legislature. There is also debate
about the extent to which, in exercising their judgement in relation to the Human
Rights Act 1998, the judiciary, and in particular the UK Supreme Court, is involving itself
in what are essentially political rather than legal issues. This raises the question of the
extent to which the judiciary should be accountable as well as independent. These
issues are discussed in detail in Chapters 12 and 13 of the module guide. In recent years
the role of the judiciary in disputes between the citizen and the state has increased
alongside the growth in governmental functions. The responsibility of the judiciary to
protect citizens against unlawful acts of government has thus increased, and with it
the need for the judiciary to be independent of government. As Lord Phillips, the first
President of the UK Supreme Court noted in 2011:
The citizen must be able to challenge the legitimacy of executive action before an
independent judiciary. Because it is the executive that exercises the power of the State
and because it is the executive, in one form or another, that is the most frequent litigator
in the courts, it is from executive pressure or influence that the judiciary are particularly to
be protected.
The importance of an independent judiciary and the need to protect that

independence is reflected in the provisions of CRA 2005. At a time of change in
constitutional arrangements, the CRA 2005, for the first time, provided statutory
protection for judicial independence. Section 3 states that:
The Lord Chancellor, other ministers of the Crown, and all with responsibility for matters
relating to the judiciary or otherwise to the administration of justice must uphold the
continued independence of the judiciary.
Particular duties imposed under section 3 of the CRA 2005 to ensure judicial
independence include:
u the Lord Chancellor and other ministers of the Crown must not seek to influence
particular judicial decisions through any special access to the judiciary
u the Lord Chancellor must have regard to the need to defend judicial independence
and the need for the judiciary to have the support necessary to enable them to
exercise their functions.

1. What are the links between constitutional principles and the legal system?
2. What is a constitution? Explain in your own words.
3. What are the advantages and disadvantages of the UK’s unwritten constitution?
4. Name three of the most important constitutional principles.
5. Explain one way in which the principle of separation of powers has affected the
operation of the legal system.
6. What is a simple definition of the rule of law? Summarise in your own words.
7. Name three of Lord Bingham’s essential elements of the rule of law. Which of
these elements do you think is most important? Give reasons for your answer.
8. Why is an independent judiciary essential to the rule of law?
9. How does the rule of law protect societies from tyranny?
10. In what sense might we say that the rule of law is an ‘aspiration’?

Notes

Part B: Legal method
5 The doctrine of judicial precedent
Contents
5.1 What is judicial precedent? . . . . . . . . . . . . . . . . . . . . . . . 49
5.2 Judges as law makers . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Learning outcomes
u understand what is meant by the doctrine of judicial precedent and why it is
important in the common law
u recognise and distinguish between ratio decidendi and obiter dicta
u explain the extent to which judges can make law within the system of precedent.
Core text
¢ Holland and Webb, Chapter 6 ‘The doctrine of judicial precedent’ and Chapter 7
‘How precedent operates: ratio decidendi and obiter dictum’.
Essential reading
¢ Lord Dyson MR ‘Are the judges too powerful?’, Bentham Presidential
Address, UCL, 13 March 2014, at www.judiciary.gov.uk/announcements/
mor-speech-are-judges-too-powerful/
¢ McLeod, I. Legal method. (Basingstoke: Palgrave Macmillan, 2013) ninth edition

[ISBN 9781137027689] Chapter 14 ‘Arguments for and against judicial law-making’
¢ Lord Sumption ‘The limits of law’, 27th Sultan Azlan Shah Lecture, Kuala Lumpur,
20 November 2013, at www.supremecourt.uk/docs/speech-131120.pdf
¢ Lady Hale ‘Legislation or judicial law reform: where should judges fear to
tread?’, Society of Legal Scholars Conference 2016, 7 September 2016, at http://
www.supremecourt.uk/docs/speech-160907.pdf

¢ R v R (Marital Exemption) [1992] 1 AC 599.
¢ Willers v Joyce [2016] UKSC 44.
¢ R (Youngsam) v Parole Board [2019] EWCA Civ 229.
Further reading
¢ Slapper and Kelly, Chapter 4 ‘Sources of law: case law’.
¢ Lord Justice Etherton ‘Liberty, the archetype and diversity: a philosophy of

judging’, Public Law 2010, p.727 (available in Westlaw through the Online
Library).
¢ Slorach et al., Chapter 5 ‘Case law’.
¢ Sales, P. ‘Law reform challenges: the judicial perspective’, Statute Law Review
39(3) 2018, pp.229–43 (available in LexisLibrary through the Online Library).
¢ Oxford University Press activity on ‘Identifying the ratio’, at https://global.oup.

com/uk/orc/law/els/gillespie5e/student/activities/identifying/ and https://global.
oup.com/uk/orc/law/els/gillespie5e/student/activities/identifying/answer/
¢ Elliott, M. ‘The right to die: deference, dialogue and the division

of constitutional authority’, Public Law for Everyone, 26
June 2014, at https://publiclawforeveryone.com/2014/06/26/
the-right-to-die-deference-dialogue-and-constitutional-authority/

Legal system and method 5 The doctrine of judicial precedent page 49
5.1 What is judicial precedent?
5.1.1 The basic principles

The doctrine of judicial precedent is fundamental to the operation of the common
law; it provides a framework within which case law can operate as a source of law in
the English legal system. In practice it means that a judge deciding a particular case
will look for a ‘precedent’ – a decision in an earlier similar case – to help them reach
their decision in the case before them.
One of the most important justifications for following precedents is related to the idea
of doing justice. Consistency is seen as an essential element in doing justice, in the
sense that similar cases coming before the courts for determination should be treated
in a similar way. Another practical justification for following precedent is that if judges
follow the reasoning and decisions of their judicial colleagues, the common law
becomes certain and predictable. This is desirable so that people can organise their
affairs knowing what the law is, and to avoid continually litigating legal points. Thus it
is regarded as both fair and efficient to follow precedent.
Expressed in this way, the practice of precedent is not particularly unusual and is to be
found to a greater or lesser degree in most developed legal systems. Indeed, in civil
law jurisdictions there is a principle of non-binding precedent, sometimes referred to
as the doctrine of judicial consistency, according to which it would be thought erratic
if the courts significantly varied their approach to similar legal questions.
The concept of binding precedent

However, in the English common law system, we talk of the doctrine of ‘binding’
precedent, in which the courts are bound to follow earlier decisions, even though a
judge in a second court might not approve of the earlier precedent.
Sometimes this will be referred to as the rule of stare decisis, which literally means ‘to
stand by decisions already made’. The idea of binding precedent in the common law
system is to ensure fairness through consistency, to provide predictability in the law
and thus to reduce the need for litigation. If people can determine what the law is,
there is no need to litigate the case and indeed no point in doing so. Legal advisers can
advise clients with confidence about the legal principles that a judge would apply in
deciding a dispute in court and what the outcome would be.
The rule of binding precedent is that the legal rule established in a precedent
will continue to be applied in subsequent similar cases until either another court
decides that the case was incorrectly decided; or for some other reason cannot be
allowed to stand; or until a court higher in the hierarchy overturns the decision; or
until Parliament decides to change the law by passing a new Act of Parliament that
overrules or alters the rule laid down by the court (which Parliament can always do
because of the doctrine of parliamentary supremacy).
The principle of stare decisis or binding precedent serves the objectives of predictability,
consistency and fairness within a common law system. Without binding precedent,
there is a risk of conflicting decisions and uncertainty. On the other hand, adhering too
rigidly to precedent can lead to rigidity in the law. The English common law approach to
precedent provides a balance between predictability and flexibility. The Supreme Court
has recently reaffirmed the importance of judicial precedent to the legal system:
In a common law system, where the law is in some areas made, and the law is in virtually
all areas developed, by judges, the doctrine of precedent, or as it is sometimes known
stare decisis, is fundamental. Decisions on points of law by more senior courts have to
be accepted by more junior courts. Otherwise, the law becomes anarchic, and it loses
coherence clarity and predictability.
(Willers v Joyce [2016] UKSC 44, para. 4)
It is worth noting that the doctrine of binding precedent is a limitation which the
judiciary have imposed on themselves. It is not a rule of Parliament but a judicial

discipline, and if the judiciary were to agree on a change they would, in theory, be free
to do so. This is exactly what happened in 1966 when the judges in the House of Lords
(which is now the UK Supreme Court) decided to change their practice. They agreed
that in the future, although they would normally regard themselves as bound by their
own earlier decisions, in appropriate cases they would be prepared to overrule an
earlier decision. This issue is discussed in detail in Chapter 6.
Binding and persuasive precedents

The doctrine of binding precedent represents a constraint on judicial decision-making.
There is a distinction between precedents which a judge may choose to follow –
persuasive precedent – and those which a judge is bound to follow – binding precedent.
A precedent is persuasive where it is not binding, but will still be taken into account
by a court. The judge will feel that they are under some obligation to explain why they
are not going to follow a persuasive precedent. All serious statements made by judges
of the higher courts are treated with respect and may be cited in any court. However,
certain classes of especially persuasive precedent may be identified:
u ratio of the Judicial Committee of the Privy Council (JCPC)
u ratio of superior courts in other common law jurisdictions
u decisions of High Court Judges, which other High Court Judges treat as very persuasive,
especially where the decision was reserved (i.e. given after time for reflection).
Vertical and horizontal precedent

In the English common law system, the doctrine of binding precedent means that a
judge in a lower court must apply a decision made in a similar case in a higher court or,
indeed, in a court at the same level. These are the concepts of vertical and horizontal
precedent.
Vertical precedent refers to the extent to which a court lower down the hierarchy is
bound to follow a decision of a court higher up the hierarchy. For example, is the Court
of Appeal bound to follow the decisions of the UK Supreme Court?
Horizontal precedent refers to the extent to which a court at the same level is bound
to follow its own earlier decisions. For example, is the Court of Appeal bound to follow
its own earlier decisions?
Ratio decidendi and obiter dicta

The decisions of judges in reported cases contain a large amount of material.
Decisions normally comprise material about the facts of the case; information about
the arguments made in court; and then there is the decision itself and the reasons
for the decision – or the reasoning that leads to the decision. The essential pieces of
information in a reported case which will be important for the operation of the system
of binding precedent are: the material facts of the case; and the application of legal
principles to those facts that leads to the decision.
What constitutes the precedent that must be followed in later cases is the ratio
decidendi – the ‘reason for deciding’. The ratio decidendi is often contrasted with other
parts of the judgment, which are regarded as obiter dicta – things said by the way,
but which were not essential for the decision in the case. Obiter dicta can still be of
persuasive authority.
The ratio decidendi is essentially the legal rule that leads to the decision, incorporating
the material facts of the case, and it is this legal rule that is binding on a later judge. As
Sir Rupert Cross explained:
The ratio decidendi of a case is any rule of law expressly or impliedly treated by the judge
as a necessary step in reaching his conclusion, having regard to the line of reasoning
adopted by him…
(Cross, R. Precedent in English law. (Oxford: Clarendon Press, 1977) third edition
[ISBN 9780198760733])

The ratio is not the same as the actual decision in the case as between the parties to
the case; it is not a description of what happened in a case or what the outcome was
for the parties. The ratio is the essential reasoning that creates the generally applicable
rules or principles of law that will be applied by later courts.
It is interesting to note that very occasionally the obiter dicta parts of the judgment
may be of the most importance for the future development of case law. This happened
with Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67. In this case, the claimant, who was a
professional gambler, had used a method of playing cards, known as edge-sorting, to
win large amounts of money at the defendant’s casino. The defendant refused to pay
the claimant his winnings, and the claimant brought a legal claim for recovery of these
sums. The case eventually went to the Supreme Court, where the claimant’s appeal
was dismissed. The Supreme Court found that the claimant had breached an implied
contractual term not to cheat, and found that it was not necessary to consider the test
of dishonesty as part of this test. This is the ratio of the case. However, in comments
that were obiter dicta, the court went on to state that the long-standing test for
criminal dishonesty, found in the case of R v Ghosh [1982] QB 1053, should no longer
represent the law. Lord Hughes took the opportunity to state that ‘the second leg of
the test propounded in Ghosh does not correctly represent the law and that directions
based upon it ought no longer to be given’ (at para.74). Although Lord Hughes’
statement was obiter, it is widely expected that this change to the test of dishonesty
will have important implications for the development of criminal common law.
In R v Barton and Booth [2020] EWCA Crim 575, the Criminal Division of the Court of
Appeal addressed the question of whether the Crown Court was bound by the decision
of the Court of Appeal Criminal Division in Ghosh or whether it was right to follow what
is, for criminal law, the obiter dicta of the Supreme Court in Ivey, a civil case. It might be
tempting to simplify this to a question of which has more force – the ratio of a Court
of Appeal decision or obiter dicta from a Supreme Court judgment – but we must not
overlook the fact that in Ivey the Supreme Court thoroughly reviewed the test for
dishonesty in both civil and criminal law and expressly disapproved of the Ghosh test
(which it could not overrule). A similar point could be made in relation to Hedley Byrne
& Co Ltd v Heller & Partners Ltd [1964] AC 465, in which a leading precedent was set in
the law of negligence, despite the fact that the relevant judicial reasoning was almost
certainly obiter dicta.
The ability to read a reported case and to identify its ratio decidendi is an essential
skill of the lawyer. It is a skill that must be developed in order to make sense of the
common law, to understand judicial reasoning and, ultimately, to be in a position to
provide advice on legal disputes and problems. Law students can be reassured that it
takes time to acquire this vital skill and it is not always easy to do so, but it does come
with practice.
In R (Youngsam) v Parole Board [2019] EWCA Civ 229, Lord Justice Leggatt provided
some insights into defining the ratio of a case. Leggatt LJ took as his starting point
the definition of Sir Rupert Cross that ‘the ratio decidendi of a case is any rule of
law expressly or impliedly treated by the judge as a necessary step in reaching his
conclusion…’ but queried the meaning of ‘necessary’ in this definition. According to
Leggatt LJ (at para.51):
The ratio is (or is regarded by the judge as being) part of the best or preferred justification
for the conclusion reached: it is necessary in the sense that the justification for that
conclusion would be, if not altogether lacking, then at any rate weaker if a different rule
were adopted.
Further, the test that had been set out by Sir Rupert Cross appeared to make the
question of whether a proposition of law was the ratio dependent on whether the
judge intended it to be the ratio, whereas later courts in fact sometimes interpreted
decisions as authority for wider or narrower propositions. There are circumstances in
which a later court, even if this is a court at a lower level than the court which decided
a precedent case, may properly consider that the true ratio of the precedent case is
narrower than that which has been stated in the judgment.

In conclusion, Leggatt LJ argued that because of the flexibility of the doctrine

of judicial precedent, it is impossible to identify the ratio by using a simple test.
Identifying the ratio could depend on a range of factors and involve evaluative
judgements:
In looking for the ratio decidendi of a case, the starting point is always the rulings and
reasons given in the judgment(s) to justify the court’s decision, read in the light of the
facts of the case and the issues that arose. Generally, this is also where the inquiry ends.
But where there is scope for argument that a rule or ruling stated in the precedent case
was framed too broadly, or that the decision is for some other reason better explained on
a different basis which would enable it to be distinguished, the search for the ratio will
also involve an evaluation of the strength and persuasiveness of the reasons expressed
in the judgment(s) or otherwise advanced or available for the ruling. Such an evaluation
will require consideration of a wider legal context in order to assess whether and to
what extent the reasoning and the result reached in the precedent case are consistent
with other authorities and legal principles (including subsequent authorities and
developments in the law).
(at para.58)
These factors could include (among others) the degree of consensus among the
judges who decided the precedent case, the clarity or otherwise of the ruling and of
the supporting reasoning, and whether or how clearly the court evinced an intention
to establish a binding rule (all ten factors mentioned by Leggatt LJ are listed in para.59
of his judgment).
Material facts
The ‘material’ facts of a case are the facts that are important to the decision. They are
the facts that are so important that, if they were different, the decision itself would
be different. Not all facts in a case will be relevant to the decision and the judge will
generally make fairly clear which facts are relevant.
So, for example, in the famous case of Donoghue v Stevenson [1932] AC 562, the court
dealt with the question of whether a manufacturer of a food product could be liable
for causing injury to the ultimate consumer of the product as a result of negligent
manufacture. In this case, Mrs Stevenson was made ill as a result of consuming ginger
beer poured from a brown bottle which contained a dead snail.
The fact that the bottle was brown – and thus the contents could not be examined –
was a material fact, whereas the fact that the content of the bottle was ginger beer
was not material. The bottle could have contained lemonade or any other drink. The
point was that the contents could not be examined.
Distinguishing
The doctrine of binding precedent requires that a judge follows the decisions of
earlier cases unless a similar earlier precedent can be ‘distinguished’. Cases can
be distinguished on their material facts or on the point of law involved. This is a
device sometimes resorted to by judges in order to avoid the consequences of an
inconvenient decision which is, in strict practice, binding on them. Distinguishing
means that the judge will find a difference between the material facts or the legal
reasoning in the present case and the earlier case that would otherwise be a binding
precedent; the judge may find the difference is sufficiently significant that the earlier
case does not have to be followed.
The Court of Appeal has recently warned that too much use of the technique of
distinguishing could lead to a loss of legal coherence:
Our starting point is the law as decided by decisions of other courts that bind us. In some
circumstances it is possible for this court not to apply by analogy an earlier binding
decision which concerns different facts. But that is only possible where there is a sound
reason, rooted in legal principle, for not doing so. This is the technique of distinguishing
cases. The technique should certainly not be used if it would result in the law losing its
coherence. If the application of a principle decided by an earlier binding decision to a
different (but cognate) set of facts results in an outcome which the losing party perceives

to be unfair, the remedy is to appeal. In the case of an appeal to the Supreme Court that
court may depart from what otherwise have been [sic] a binding decision of its own (or of
the House of Lords) under the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234.
(Sevilleja Garcia v Marex Financial Ltd [2018] EWCA Civ 1468, para.69)
How can cases lose their binding authority?

There are three principal ways in which a case can lose its binding force.
(i) Express or implied overruling: a case may be expressly overruled by Parliament

if Parliament chooses to do so. Alternatively, if a case has not been expressly
overruled but is inconsistent with a later Act of Parliament it will be deemed to
have been ‘impliedly overruled’.
(ii) Reversal: a case is reversed when the loser appeals and the appeal court agrees
with them. Sometimes cases are reversed only on some issue of fact. Where this
happens the ratio does not lose its binding force.
(iii) Overruling: a case is overruled when a higher court, dealing with indistinguishable
material facts, either expressly overrules the earlier case, or produces a ratio which
is inconsistent with that of the earlier case.
How do you identify the ratio decidendi of a case?

This is the question that all law students ask. There is no simple way. The ratio does
not appear underlined and in red ink in the judgment. Reported cases may run to 10,
20 or 50 pages and include judgments given by several judges in the case. The only
way to identify the ratio is through a careful process of analysis and comprehension:
reading through the case, following the analysis of the judge, following the judge’s
identification of the key legal principles and understanding how they have applied
those principles to the facts of the case in order to reach their decision. This is legal
method and you will learn it by reading cases together with the explanation of cases
that you find in your textbooks and other legal commentaries. You will find it useful to
study carefully the worked examples in Chapter 7 of Holland and Webb (2019), and to
consider the self-assessment exercise at the end of Chapter 10.
5.2 Judges as law makers
5.2.1 Do judges make or declare the law?

Historically there has been considerable debate about the role of the judiciary in the
English common law system. Constitutionally, it is for the legislature to make law and
for the judiciary to give effect to that law. The judiciary are not elected representatives
of the people and therefore lack legitimacy for law-making in a democratic society
governed by the rule of law (what is often referred to as a ‘democratic deficit’).
This strict approach to the role of the judiciary was expounded by William Blackstone
and is known as the ‘declaratory theory’ – that the role of the judge is to declare what
the law is, and not to make it. An example of this approach is given by Lord Simonds in
the case of Midland Silicone Ltd v Scruttons Ltd [1962] AC 446, where he said:
Nor will I easily be led by an undiscerning zeal for some abstract kind of justice to ignore
our first duty which is to administer justice according to law, the law which is established
for us by an Act of Parliament or the binding authority of precedent.
However, there is ample judicial writing and scholarly discussion to conclude that
in the English common law system the judiciary do perform a limited law-making
function in incrementally developing the common law to ensure that it keeps pace
with changes in social and economic conditions and remains sufficiently flexible to
accommodate new situations.
Judges also sometimes have no choice but to make law if there is no statutory law and
also no previous case law that really covers the situation they are faced with deciding.

A good example of this is the case of Gillick v West Norfolk and Wisbech Area Health
Authority [1986] AC 112, a case on the capacity of minors under the age of 16 to give
valid consent to medical advice or treatment, specifically in relation to contraception.
There was no directly relevant case law on this point. Lord Scarman noted that (at
p.185):
Neither statute nor the case law has ruled on the extent and duration of parental right
in respect of children under the age of 16. More specifically, there is no rule yet applied
to contraceptive treatment, which has special problems of its own and is a late-comer in
medical practice. It is open, therefore, to the House [of Lords] to formulate a rule.
The House of Lords in the Gillick case therefore established new rules setting out the
tests by which capacity in minors under the age of 16 should be assessed.
The title of Lord’s Reid’s essay The judge as lawmaker, published in 1972, after he had
retired from the House of Lords (now the Supreme Court), indicates his view of the
matter. He famously said:
We do not believe in fairy tales any more. So we must accept the fact that for better or
worse judges do make law, and tackle the question how do they approach their task and
how they should approach it.
(Lord Reid, ‘The judge as lawmaker’, The Journal of Public Teachers of Law 12 1972)
In the case of National Westminster Bank v Spectrum Plus [2005] 2 AC 680, Lord Nicholls
said (at para.32):
The common law is judge-made law. For centuries judges have been charged with the
responsibility of keeping this law abreast of current social conditions and expectations.
That is still the position. Continuing but limited development of the common law in this
fashion is an integral part of the constitutional function of the judiciary. Had the judges
not discharged this responsibility, the common law would be the same now as it was in
the reign of King Henry II. It is because of this that the common law is a living instrument
of law, reacting to new events and new ideas, and so capable of providing the citizens of
this country with a system of practical justice relevant to the times in which they live.
However, in his essay memoir ‘The judge as lawmaker’, Lord Bingham identified some
situations where judges would or should be reluctant to make new law. For example:
Where citizens have organised their affairs on the basis of their understanding of the law;
where a defective legal rule requires detailed amendments, qualifications and exceptions;
where the issue involves a matter of social policy on which there is no consensus; or where
the issue is in a field outside of ordinary judicial experience.
(Bingham, T. ‘The judge as lawmaker: an English perspective’ in his The business of judging:
selected essays and speeches. (Oxford: Oxford University Press, 2000 [ISBN 9780198299127]))
The extent to which any judge is prepared to innovate will depend on their view of the
balance to be achieved between competing requirements of the common law. These are:
u the need for stability in the common law
u the need for certainty in the common law
u the need for flexibility in the common law
u the desire to do justice between the parties in the instant case
u the duty not to usurp (take over) the role of Parliament.
As Lord Dyson concluded in his 2014 speech on the power of the judiciary:
…in deciding whether to develop the common law or to leave any change to Parliament,
the courts do not apply some overarching principle…some judges are more cautious
than their colleagues; others are more adventurous. But despite these differences, the
common law continues to evolve. What is clear is that the judges have great power in
shaping the common law and, therefore, influencing the lives of all of us. The existence

of this power is, of course, always subject to Parliament. If Parliament wishes to change
the common law, it can do so. But, despite some notable exceptions…Parliament rarely
shows any appetite to change the common law. So far as I am aware, the manner in which
the judges develop the common law has not excited much political comment or given
rise to a demand to clip the wings of the judges. I would like to think that this is because,
on the whole, the judges have done a good job in this area and no-one has suggested a
fundamentally different way of doing things that would command popular support.
5.2.2 Should judges make the law?

The main argument in favour of some degree of judicial law-making is that of speed.
Courts can rapidly develop or change the law (by overruling) if this is necessary.
Parliamentary processes are lengthy, and with a heavy legislative agenda Parliament
may not give priority to dealing with areas of law that require updating or correction.
Within the constraints of precedent the judiciary are able rapidly to correct mistakes
or to keep the law up to date. The principal argument against the judiciary making
new law is that of the ‘democratic deficit’. The judiciary are appointed, not elected.
Thus in a Parliamentary democracy under the rule of law, it is not for the judiciary to
legislate but for Parliament.
In his speech on law making by the European Court of Human Rights, Lord Sumption
argues that the Human Rights Act 1998 gives the judiciary power to make new law in
politically controversial areas and that this is essentially undemocratic. He argues that
‘law made in Europe by unelected judges is changing the law in the UK in a way that is
democratically unaccountable’. Lord Sumption reinforced this statement in the 2019
Reith Lectures:
In the last three decades, however, there has been a noticeable change of judicial mood.
The Courts have developed a broader concept of the rule of law which greatly enlarges
their own constitutional role. They have claimed a wider supervisory authority over other
organs of the State. They have inched their way towards a notion of fundamental law
overriding the ordinary processes of political decision-making, and these things have
inevitably carried them into the realms of legislative and ministerial policy…law is now
the continuation of politics by other means.
(Sumption , J. ‘In Praise of Politics’, the Reith Lectures 2019, 1 June 2019, at
www.bbc.co.uk/programmes/m0005f05)
5.2.3 Case law examples of judicial law-making

The case law provides examples of the House of Lords/Supreme Court being willing
to develop or change the law and also examples of the Court refraining from making
decisions where there was a need for Parliament to legislate. The UK Supreme Court,
although largely free from the constraint of precedent (see Chapter 6), has in general
adopted a cautious approach to the making of new law. The Court does not have the
democratic legitimacy to introduce major changes to English law and it is mindful of
its proper constitutional position and relationship with the legislature.
R v R (Marital Exemption) [1992] 1 AC 599

A case in which the House of Lords was prepared to introduce a major change to the
law was that of R v R (Marital Exemption) [1992] 1 AC 599. The House of Lords justified the
abolition of a 250-year-old rule that a man could not be criminally liable for raping his
wife on the ground that it was not creating a new offence. It was, instead, removing
an assumption that was no longer acceptable in current social conditions (i.e. that on
marriage a woman irrevocably consents to intercourse). As Lord Dyson commented in
a speech in March 2014, this was a change to the law that the judiciary felt confident in
making:
This change did not require any difficult policy choices to be made. It was uncontroversial,
widely welcomed and long overdue…It is and was inconceivable that Parliament would
reverse this decision. Parliament had had plenty of opportunity to legislate for an

amendment of the law. It seems that the political call for change was not sufficiently
compelling. The judges were surely right to step in.
(Lord Dyson MR ‘Are the judges too powerful?’, Bentham Presidential Address, UCL,
12 March 2014, p.6, at www.judiciary.gov.uk/announcements/mor-speech-are-judges-too-
powerful/)
R v Brown [1993] 2 All ER 75

Another instance where the House of Lords appeared to create new law was the case
of R v Brown [1993] 2 All ER 75. Here, the House held that homosexual sadomasochists
who inflicted harm on others with their consent could be convicted of assault
occasioning actual bodily harm contrary to the Offences Against the Person Act 1861,
despite the fact that this sort of situation had not previously come before the courts.
R (on the application of Nicklinson and another) v Ministry of Justice [2014] UKSC 38
There have been other cases where the judiciary have refused to step in, even though
they perceived the argument for a change in the law.
An important example is that concerning the legal ban on voluntary euthanasia in the
case of R (on the application of Nicklinson and another) v Ministry of Justice [2014] UKSC 38.
The appellants, both suffering from permanent and catastrophic disabilities, wanted to
be helped to die at a time of their choosing. Neither was physically capable of ending
their own lives without help and both argued that because of the ECHR (Article 8) anyone
helping them to end their life should not be subject to criminal consequences. However,
the current law is that those providing such assistance will be committing the offence of
assisted suicide contrary to section 2 of the Suicide Act 1961 if they merely assist a person
to take their own life, and murder if they actually terminate life themselves.
This was a contentious and difficult case and the nine Supreme Court Justices differed
on many of the issues involved. Before deciding the substantive ECHR points, the
Court had to answer a fundamental constitutional question: if Parliament, by enacting
section 2 of the Suicide Act 1961 has determined difficult policy questions around
assisted dying, is it open to the court to call that determination into question?
Four of the Supreme Court Justices who were in the majority took the view that it
would be inappropriate for the Court to make a declaration of incompatibility and
thus prompt a change in the law. Lord Sumption stated that:
Where there is more than one rational choice the question may or may not be for
Parliament, depending on the nature of the issue. Is it essentially legislative in nature?
Does it by its nature require a democratic mandate? The question whether relaxing
or qualifying the current absolute prohibition on assisted suicide would involve
unacceptable risks to vulnerable people is in my view a classic example of the kind of issue
which should be decided by Parliament
(para.230)
This echoes the views of the Court of Appeal in the case that any change in the law was
for Parliament, not the courts. In that judgment, the Lord Chief Justice said that:
The short answer must be, and always has been, that the law relating to assisting suicide
cannot be changed by judicial decision. The repeated mantra that, if the law is to be
changed, it must be changed by Parliament, does not demonstrate judicial abnegation
of our responsibilities, but rather highlights fundamental constitutional principles…The
circumstances in which life may be deliberately ended before it has completed its natural
course, and if so in what circumstances, and by whom, raises profoundly sensitive questions
about the nature of our society, and its values and standards, on which passionate but
contradictory opinions are held…For these purposes Parliament represents the conscience
of the nation. Judges, however eminent, do not: our responsibility is to discover the relevant
legal principles, and apply the law as we find it. We cannot suspend or dispense with
primary legislation. In our constitutional arrangements such powers do not exist.
(Nicklinson and Lamb v Ministry of Justice [2013] EWCA Civ 961, paras.154–55)

1. Explain the difference between a binding and a persuasive precedent.
2. Explain the difference between vertical and horizontal precedent.
3. Which part of a binding precedent is a judge bound to follow?
4. In reading a case, how can you distinguish between the ratio decidendi and
obiter dicta?
5. What is the ‘declaratory theory’?
6. Why are judges reluctant to act as law makers?
7. What approach does Lord Dyson think judges should take to the development of
the common law?
8. In the English common law system is it inevitable that judges will be making
law? Give reasons for your answer.
9. Are there areas of law where judges are especially cautious about changing the
law?
10. Did the House of Lords in R v R create a new law?
Sample essay question

‘There can be no doubt that judges do, and that judges should, make law.’
Discuss this statement, describing the extent to which judges actually make law
and explaining the limits on judicial law making.

Advice on answering the question

This question requires you to:
u discuss the extent to which judges make law
u explain any limits on judicial law-making.
The following are some of the points you could include.
1. Explain how judges can make law within the legal system. A distinctive feature
of common law is that it represents the law of the courts in judicial decisions.
Although English law is increasingly statute based, the common law is still an
important part of the legal system. This provides flexibility for judges to create
law – but incrementally and within constitutional limits. Judges accept that –
within limits – they make law (e.g. cases like Donoghue v Stevenson).
2. Explain the declaratory theory – that the role of the judge is to declare what the
law is, and not to make it. Compare this with arguments that judges do make
law – Lord Reid; Lord Nicholls in National Westminster Bank v Spectrum.
3. Constraints include the constitutional limits and the ‘democratic deficit’.

This ties into the question of whether judges should make law within the
constitutional context – see the arguments of Lord Sumption.
4. The limits on judicial law making might also be practical, such as the need
for a case to arise and for it to reach the level where a court is not bound by
precedent and is thus able to change the law and also able to do so on the facts
before it, since it can only frame its decision in the context of the claims of the
parties before it.
5. Relevant cases include:
u R v R (Marital exemption): the House of Lords abolished the ancient rule that
a man could not rape his wife. It argued that this was uncontroversial and
reflected changed social conditions.
u R v Brown: the House of Lords extended the offence of Actual Bodily Harm to
sadomasochistic sex.
u Nicklinson: the Supreme Court said that the law governing assisted suicide
must be changed by Parliament, since this is a controversial ethical issue.

6 Judicial precedent in practice
Contents
6.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
6.2 Vertical and horizontal precedent in the court hierarchy . . . . . . . . . 61

Learning outcomes
u explain and apply the rules of binding precedent in relation to each court
u explain how the Human Rights Act 1998 affects the operation of binding
precedent.
Core text
¢ Holland and Webb, Chapter 6 ‘The doctrine of judicial precedent’.
Essential reading
¢ Lee, J. ‘The doctrine of precedent and the Supreme Court’, Inner Temple
Academic Fellow’s Lecture, 23 April 2011, at https://d17g388r7gqnd8.cloudfront.
net/2017/08/lecture_james_lee.pdf
¢ Lord Irvine of Lairg ‘A British interpretation of Convention rights’, Public Law

(Apr) 2012, pp.237–52 (available in Westlaw through the Online Library).
¢ Lord Justice Laws ‘The common law and Europe’, Hamlyn Lecture 2013,
Lecture III, 28 November 2013, at www.judiciary.gov.uk/announcements/
speech-lj-laws-hamlyn-lecture-2013/

¢ Austin v Mayor and Burgesses of the London Borough of Southwark [2010] UKSC 28.
¢ Davis v Johnson [1979] AC 264.
¢ Chester v Secretary of State for Justice [2013] UKSC 63.
Further reading
¢ Blom-Cooper, L. and G. Drewry ‘Correcting wrong turns: the 50th birthday of
the 1966 House of Lords Practice Statement on Precedent’, Public Law 2016,
pp.381–82 (available in Westlaw through the Online Library).
¢ Wright, J. ‘Interpreting section 2 of the Human Rights Act 1998: towards an

indigenous jurisprudence of human rights’, Public Law 2009, pp.595–616
(available in Westlaw through the Online Library).
¢ Mirfield, P. ‘A novel theory of Privy Council precedent’, Law Quarterly Review 133
(Jan) 2017, pp.1–6 (available in Westlaw through the Online Library).
¢ Graham, L. ‘Hallam v Secretary of State: under what circumstances can the

Supreme Court depart from Strasbourg authority?’, UK Constitutional Law
Association Blog, 4 February 2019, at https://ukconstitutionallaw.org/2019/02/04/
lewis-graham-hallam-v-secretary-of-state-under-what-circumstances-can-the-
supreme-court-depart-from-strasbourg-authority/

Legal system and method 6 Judicial precedent in practice page 61
6.1 Introduction
Chapter 5 discussed the broad concept of judicial precedent as well as the conceptual
question of the extent to which judicial precedent enables or should enable judges
to make law. This chapter now looks at the technical rules of precedent and how the
rules work in practice in different courts. The chapter will explain, for example, how
different courts are bound by precedent in different ways and to different extents.
The Supreme Court has recently helpfully reaffirmed some of the applicable rules in
the case of Willers v Joyce [2016] UKSC 44 (see paras.5–9 of the judgment).
6.2 Vertical and horizontal precedent in the court hierarchy

You will remember the definitions of vertical and horizontal precedent from Chapter 5.
u Vertical precedent refers to a decision of a court higher up in the court hierarchy

binding a court lower down, for example, the Supreme Court binding the Court of
Appeal.
u Horizontal precedent refers to the decision of a court binding future decisions of

that court at the same level of the court hierarchy, for example, a Court of Appeal
decision being binding in a later Court of Appeal case. The position of horizontal
precedent varies from court to court.
6.2.1 The UK Supreme Court (formerly House of Lords)
Vertical precedent
The UK Supreme Court binds all of the courts below it in the court hierarchy. There
have been some occasions in the past when the Court of Appeal has challenged this
principle (see discussion of precedent in the Court of Appeal).
Horizontal precedent
Until the mid-19th century, the House of Lords took the view that it was not bound by
its own decisions, but in 1898, in the case of London Street Tramways Ltd v London County
Council [1898] AC 375, the House confirmed that it would in future be bound by its own
previous decisions. The reason for this was to bring finality to cases and legal issues so
that they would not be continually reargued. However, in the period that followed the
London Tramways decision, it was felt that the effect of the decision was to constrain
the development of the common law and that, rather than ensuring predictability and
certainty in the law, the effect was rather the opposite.
As a result, in 1966, all of the judges in the House of Lords joined together to issue
a Practice Statement (a statement by the court of a procedure that it intends to
introduce) providing that in future the House would no longer regard itself as bound
by its own earlier decisions. The statement was carefully worded to communicate that
this new power to depart from decisions would be used sparingly to avoid creating
uncertainty in the law.
The Practice Statement set out why the House of Lords was going to change its
practice and how it thought it would exercise the new freedom to depart from earlier
decisions of its own. It 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 … as
normally binding, to depart from a previous decision when it appears right to do so.
Together with the Practice Statement, the House of Lords published a press release
which gave more explanation about the new practice. The key points that emerged
from the Practice Statement and press release were that:
u the court would only rarely depart from an earlier decision

u the court would be most likely to use the new freedom in situations where
there had been significant social change, so that a precedent was outdated or
inappropriate to modern social conditions, values and practices
u the court would be likely to depart from an earlier decision if there was a need to
keep English common law in step with the law of other jurisdictions
u there was a special need for certainty in criminal law, and as a result the court
would be very reluctant to depart from an earlier decision in a criminal case.
Soon after the UK Supreme Court was established in 2009, Lord Hope gave a judgment
in Austin v Southwark London Borough Council [2010] UKSC 28, [2010] 4 All ER 16, in
which he made it clear that the prior jurisprudence of the House of Lords had been
transferred to the UK Supreme Court and that the latter would therefore not regard
itself as bound by earlier decisions:
The Supreme Court has not thought it necessary to re-issue the Practice Statement as
a fresh statement of practice in the Court’s own name. This is because it has as much
effect in this Court as it did before the Appellate Committee in the House of Lords. It was
part of the established jurisprudence relating to the conduct of appeals in the House of
Lords which was transferred to this Court by section 40 of the Constitutional Reform Act
2005. So the question which we must consider is not whether the Court has power to
depart from the previous decisions of the House of Lords which have been referred to, but
whether in the circumstances of this case it would be right for it to do so.
(para.25)
The use of the Practice Statement in the House of Lords/UK Supreme Court
The Practice Statement and accompanying press release provide a good example of how,
within the system of binding precedent, the judiciary have developed sufficient scope for
the law to remain flexible and responsive to social change. The freedom of the House of
Lords/UK Supreme Court to be less rigidly bound by precedent is a critical feature of the
English system of precedent. So long as the power is used cautiously, it provides flexibility
while broadly maintaining consistency and predictability in the common law.
However, the power to depart from an earlier decision and, effectively, transform
the law overnight raises issues about the line between a desirable level of judicial
creativity and flexibility, on the one hand, and crossing a line which trespasses on the
role of Parliament as the legislator within the English constitution, on the other.
History since 1966 shows that the House of Lords and UK Supreme Court have used the
power very sparingly. In The law lords (London: Macmillan, 1982) [ISBN 9780333238868],
a study of the House of Lords judiciary, Professor Alan Paterson reported that between
1966 and 1980 there were 29 cases where the House of Lords was invited by counsel
to overrule their own precedents. In eight cases the court did overrule one of their
own earlier cases. In a further 10 cases at least one law lord would have been willing to
overrule.
The Practice Statement in criminal cases

Knuller v DPP [1973] AC 435 This case was the first time after the publication of the
Practice Statement of 1966 that the House of Lords was invited to overrule a decision
in a criminal case: the controversial decision in Shaw v DPP [1962] AC 220. In this case,
Shaw had published a directory of the names and addresses of prostitutes, called the
Ladies’ Directory. Despite having been advised by the police that this would not be
unlawful, he was subsequently arrested and convicted of the previously unknown
offence of conspiracy to corrupt public morals. The House of Lords referred to an
18th century case which they argued was based on similar principles. Following the
decision there was considerable debate as to whether such an offence existed, and
many thought that the case would be overruled if the opportunity arose. But the
House of Lords in Knuller refused to overrule Shaw. Interestingly, even though Lord Reid
had dissented in the case of Shaw, he thought it would be wrong to use the Practice
Statement to upset the decision. Lord Reid said: ‘however wrong or anomalous a
decision may be it must stand…unless or until it is altered by Parliament’.

R v Shivpuri [1986] 2 All ER 334 The first time that the House of Lords overturned one
of its own decisions in criminal law was in the case of Shivpuri in 1986 – some 20 years
after the court issued its Practice Statement of 1966. In the case of Shivpuri the House
was invited to overturn its decision in the case of Anderton v Ryan [1985] 2 All ER 355,
perhaps surprisingly, since Anderton v Ryan had only been decided one year earlier.
Ryan had dishonestly handled a video recorder that she believed was stolen. In fact,
it was not stolen. The House of Lords held that Ryan could not be guilty of attempting
to steal the goods under s.1 of the Criminal Attempts Act 1981. It was impossible
because the goods were not stolen goods. The court’s decision was criticised for
having misinterpreted s.1 of the Criminal Attempts Act 1981. In the case of R v Shivpuri,
the defendant believed that he was dealing with a controlled drug when in fact it was
harmless, and on the question of liability the House was invited to overturn Anderton
v Ryan. It did so. This was the first time that the House of Lords overruled its own
decision in a criminal case and it was regarded as a spectacular decision. In Shivpuri,
Lord Bridge acknowledged that the earlier decision of the House of Lords had been
wrong, that there was no valid ground on which it could be distinguished and that it
should be overruled notwithstanding the need for certainty in the criminal law. He
said (at p.11):
If a serious error, embodied in a decision of this House has distorted the law, the sooner it
is corrected the better.
Another example involving criminal law in which the House of Lords overturned an
earlier decision is that of R v Howe [1987] 1 All ER 771, concerning duress as a defence to
murder. In Howe the House of Lords overturned its decision in DPP for Northern Ireland v
Lynch [1975] AC 653 and held that duress is never a defence to murder.
The Practice Statement in civil cases
British Railways Board v Herrington [1972] AC 877

This case involved the duty of care owed by an occupier of land to people trespassing
on the land. The House of Lords in Herrington overturned the much earlier case of
Addie v Dumbreck [1929] AC 358. In Addie v Dumbreck the House of Lords had held that
an occupier of land would only be liable for harm caused to a trespasser if the harm
was caused intentionally. The House of Lords in Herrington held that social attitudes
had changed in the intervening 50 years, and that occupiers of land, as a matter of
common humanity, should take reasonable steps to deter people from trespassing
where they are likely to be injured. The Addie v Dumbreck case had impeded the proper
development of the common law and should be overruled.
Murphy v Brentwood District Council [1990] 2 All ER 908

This is a decision of major importance to the tort of negligence. The House of Lords
overruled its own decision in Anns v Merton London Borough Council [1977] 2 All ER 492.
The decision in Anns had been severely criticised at the time it was delivered, and in
Murphy the House of Lords departed from all of the propositions in Anns. Lord Keith of
Kinkel said:
I think it must now be recognised that [Anns] did not proceed on any basis of principle at all,
but constituted a remarkable example of judicial legislation. It has engendered a vast spate
of litigation, and each of the cases in the field which have reached this House has been
distinguished…There can be no doubt that to depart from the decision would re-establish a
degree of certainty in this field which it has done a remarkable amount to upset.
Austin v Mayor and Burgesses of the London Borough of Southwark [2010] UKSC 28
This case demonstrates first, that the 1966 Practice Statement applies to the Supreme
Court; and second, that the UKSC will be cautious about overturning an earlier decision
on statutory interpretation unless there are very strong reasons for doing so. The case
concerned the interpretation of s.82(2) of the Housing Act 1985, which had been dealt
with by the House of Lords in Knowsley Housing Trust v White [2009] 1 AC 636. Lord Hope
in Austin v Southwark felt that s.82(2) was capable of being interpreted in different
ways, but said that the question was whether it would be ‘right’ for the Supreme Court

to depart from a previous decision of the House of Lords. Lord Hope held that he was
not persuaded that the Supreme Court should depart from the decision of the House
in Knowsley, since the effect of reversing such a decision, which had stood for so long,
was incalculable in the circumstances.
Knauer v Ministry of Justice [2016] UKSC 9

In this case, the Supreme Court had to decide whether to depart from previous House
of Lords case law concerning the assessment of damages by the Court under the Fatal
Accidents Act 1976. The Court noted the importance of precedent, saying that:
… it is important not to undermine the role of precedent in the common law… it is
important that litigants and their advisers know, as surely as possible, what the law is.
Particularly at a time when the cost of litigating can be very substantial, certainty and
consistency are very precious commodities in the law. If it is too easy for lower courts
to depart from the reasoning of more senior courts, then certainty of outcome and
consistency of treatment will be diminished, which would be detrimental to the rule of law.
The judgment of Lord Neuberger and Lady Hale explained that the Supreme Court
‘should be very circumspect before accepting an invitation to invoke the 1966 Practice
Statement’. However, in the present case, the Supreme Court had no hesitation in
invoking the Practice Statement to depart from the previous decisions of the House
of Lords, given that the application of the reasoning in those cases was illogical and
resulted in unfair outcomes. The fact that there had been a material change in the
relevant legal landscape since the earlier decisions also gave rise to an overwhelming
case for changing the law.
6.2.2 The Court of Appeal
Vertical precedent in the Court of Appeal (Civil Division)

It ought to be absolutely clear that the Court of Appeal is bound by the decisions of the
House of Lords/UK Supreme Court. Although this is certainly the case, there have been
occasions when the Court of Appeal has sought to argue that it ought not to be bound
by decisions of the House of Lords/UKSC. This was particularly so in the years after
the 1966 Practice Statement and when Lord Denning, a famously creative and rather
unique English judge, was sitting in the Court of Appeal.
Lord Denning took the view that in most situations the Court of Appeal was effectively
the final court of appeal, because so few cases ever proceed for consideration in the
House of Lords/UKSC. Lord Denning thought that if the House of Lords could free itself
from the constraint of binding precedent, the Court of Appeal should be allowed
the same freedom. A clear example is to be found in the case of Cassell & Co Ltd v
Broome [1972] AC 1027. Lord Denning awarded £25,000 exemplary damages to Captain
Broome. The rules for the award of damages had been laid down in the House of Lords
case of Rookes v Barnard [1964] AC 1129. But Lord Denning said that these rules were
‘unworkable’ and declined to follow the guidance of the House of Lords. The case
was appealed to the House of Lords, where Lord Hailsham took the opportunity to
disapprove of Lord Denning’s approach. He said:
It is not open to the Court of Appeal to give gratuitous advice to judges of first instance to
ignore decisions of the House of Lords…The fact is, and I hope it will never be necessary
to say so again, that in the hierarchical system of courts which exists in this country, it is
necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions
of the higher tiers.
The House of Lords made it clear in Miliangos v George Frank (Textiles) Ltd [1976] AC
443 (see discussion of this case later in this chapter) that the Court of Appeal is not
entitled to ignore a precedent of the House of Lords simply because social conditions
may have moved on (Lord Denning’s ‘lapsed rule’ campaign). Lord Simon in that
case clarified that ‘courts which are bound by the rule of precedent are not free to
disregard an otherwise binding precedent on the ground that the reason which led to
the formulation of the rule embodied in such precedent seems to the court to have
lost cogency’ (at p.476).

The Court of Appeal has recently followed this reasoning in WB v W DC [2018] EWCA
Civ 928. This case concerned a person who was suffering from mental health issues,
who appealed against the local authority’s decision that, because she did not have
sufficient mental capacity, she could not make the decisions necessary to apply for
accommodation as a homeless person. The appellant argued that the exclusion of
persons lacking mental capacity was an obsolete statutory provision, and that the
Court of Appeal should therefore not follow the earlier decision of the House of
Lords in ex parte Ferdous Begum interpreting that statutory provision, as it no longer
represented the law. Lewison LJ said (at para.51):
It is clear that the fact that the world has moved on is not by itself a reason which would
entitle a junior court to refuse to follow a decision of a superior court…The statutory
language has not changed. Indeed it has been re-enacted by Parliament following the
decision of the House of Lords. It is perfectly true that attitudes toward disabled people
has [sic] changed radically since then, and those changes may be enough to persuade the
Supreme Court to depart from the previous decision of the House of Lords as it is entitled
to do under the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234. However, that
is not enough to enable this court to refuse to follow an otherwise binding decision of the
House of Lords unless it can be said that subsequent statutes have impliedly changed the
rule laid down by the House.
Thus, the position on vertical precedent is that the Court of Appeal is bound by
decisions of the House of Lords/UKSC whether or not the Court of Appeal approves of
those decisions, and regardless of whether social conditions have changed.
Horizontal precedent in the Court of Appeal (Civil Division)

The issue of horizontal precedent below the level of the Supreme Court is very
important. The Court of Appeal and the courts below in the hierarchy hear thousands
of cases each year (and, as noted above, this was the reason that Lord Denning wished
to change the rules on vertical precedent affecting the Court of Appeal). There will
be many courts sitting in the Court of Appeal at the same time. That means a large
number of reported judgments, and if the Court of Appeal was not to follow its own
earlier decisions this would inevitably lead to confusion and a degree of uncertainty in
the law.
The basic principle of precedent in the Civil Division of the Court of Appeal is that it
is bound by its own previous decisions. There are, however, several exceptions to
this rule. The exceptions were set out by Lord Green MR in the case of Young v Bristol
Aeroplane Co Ltd [1944] 2 All ER 293 and are as follows.
i. Conflicting decisions: where the material facts of two Court of Appeal cases are
similar but the decisions conflict, then a later Court can choose which case to
follow. Although in practice the Court will often follow the later case, it is not
bound to do so. Although conflicting decisions in this sense ought not to arise if
the system of precedent is observed by judges, in fact there are cases where it has
happened. An example of the use of this rule is National Westminster Bank v Powney
[1990] 2 All ER 416, where the Court was faced with two irreconcilable decisions
both decided in 1948: Lamb v Rider and Lough v Donovan. The Court in Powney
followed Lamb v Rider. See also Tiverton Estates Ltd v Wearwell Ltd [1974] 1 All ER 209,
where the Court of Appeal refused to follow Law v Jones [1973] 2 All ER 437.
ii. Conflict with subsequent House of Lords/UKSC decision: where a previous

decision of the Court of Appeal conflicts with a later decision by the House of Lords/
UKSC, the Court of Appeal must follow the decision of the House of Lords/UKSC,
whether or not it approves of that decision. This is sometimes referred to as the
doctrine of ‘implied overruling’.
iii. Decisions ‘per incuriam’: where a previous decision of the Court of Appeal was
given per incuriam, which means ‘in ignorance’ or ‘without sufficient care’, a later
court is not bound to follow the decision. A decision of the Court of Appeal will lose
its binding force where it was made in ignorance of some rule of law binding upon
the Court and which would have affected its decision. The per incuriam rule was

explained by Sir Raymond Evershed MR in the case of Morelle v Wakeling [1955] 2 QB

379, p.406, as follows:
Decisions given in ignorance or forgetfulness of some inconsistent statutory provision

or of some authority binding on the court concerned: so that in such cases some part
of the decision or some step in the reasoning on which it is based is found, on that
account, to be demonstrably wrong.
The Court of Appeal in DN v SOS [2018] EWCA Civ 273 stated that the boundaries of
the per incuriam rule cannot be precisely defined but the test is that, because of
some statutory provision or principle that was overlooked, the earlier decision
was demonstrably wrong. The Court could not refuse to follow an earlier decision
simply because that decision might have overlooked relevant authority, and the
per incuriam rule only applied where there were conflicting decisions on the same
point and at the same level of the court hierarchy.
A further possible exception? Conflict with an earlier decision of the House of

Lords/UK Supreme Court
A further complication arises when a Court of Appeal decision conflicts with an earlier
decision of the House of Lords/UKSC. This ought not to occur, but there are instances
when it has. The question then for the Court of Appeal is whether to follow its own
decision or that of the House of Lords.
This situation arose in the case of Miliangos v George Frank (Textiles) Ltd [1976] AC 443,
where the Court of Appeal was faced with a conflict between its own previous decision
in Schorsch Meier GmbH v Hennin [1975] QB 416 and an earlier (1960) House of Lords
decision in Havanah, which held that judgments in UK courts could only be given
in sterling. In Schorsch, Lord Denning had held that he was not bound to follow the
decision in Havanah because, when the reason for a legal rule had gone, the law itself
should go (‘cessante ratione legis cessat ipsa lex’). Commercial conditions had changed,
according to Lord Denning, and the courts would be acting contrary to the applicable
law in the Treaty of Rome if they restricted judgments to sterling.
In Miliangos, the conflict between Havanah (House of Lords in 1960) and Schorsch
(Court of Appeal in 1975) was considered. At first instance, the judge, Mr Justice
Bristow, held that he was obliged to follow the House of Lords in the Havanah case
and not the Court of Appeal in Schorsch. He said that the Havanah rule could only be
changed by statute or by the House of Lords.
Miliangos then appealed to the Court of Appeal, and Lord Denning held that Schorsch
was binding on the courts beneath the Court of Appeal and on the Court of Appeal
itself, because the exceptions set out in Young v Bristol Aeroplane [1946] 1 AC 163 were
confined to inconsistent subsequent decisions of the House of Lords.
The case was finally appealed to the House of Lords in 1976. The House of Lords held,
first, that the Court of Appeal had acted incorrectly in Schorsch when it failed to follow
Havanah; but second, that Havanah should be overruled. Lord Cross said that both
Bristow J and the Court of Appeal should follow the House of Lords decision, not the
later Court of Appeal decision.
Should the Court of Appeal be free to depart from its own earlier decisions?
After the House of Lords Practice Statement in 1966, Lord Denning conducted a
campaign to free the Court of Appeal from having to follow its own earlier decisions.
This is a separate issue from whether the Court of Appeal should continue to be
bound by the House of Lords (now the Supreme Court). Lord Denning argued in the
case of Gallie v Lee [1969] 1 All ER 1062 that the Court of Appeal need not be absolutely
bound by its own prior decisions. He said that this was a limitation self-imposed by
the judiciary and that if the House of Lords could free itself from this constraint, there
was no principled reason why the Court of Appeal could not do the same thing. Lord
Denning’s main concern was that if the Court of Appeal had made an error in a case,
the rule in Young v Bristol Aeroplane would mean that the Court would be bound to

continue to apply a bad precedent unless and until an opportunity arose for the
precedent to be overruled in the House of Lords. He repeated this view in the case of
Tiverton Estates v Wearwell [1975] Ch 146, but was unable to persuade all of the Court of
Appeal judges to agree with him.
The debate over horizontal precedent in the Court of Appeal was finally settled in the
important case of Davis v Johnson [1978] 1 All ER 841 (CA), [1978] 1 All ER 1132 (HL). The
case concerned the interpretation of s.1 of the then recently passed Domestic Violence
and Matrimonial Proceedings Act 1976. Davis and Johnson lived together with their
baby daughter in a council flat of which they were joint tenants. Johnson was violent
and Davis ran away with her child to a refuge for battered wives. She applied to the
court for an order to reinstall her in the flat and have Johnson excluded from the flat.
The Court of Appeal had considered the same question on two occasions only a few
months earlier in B v B [1978] Fam 26 and Cantliff v Jenkins [1978] Fam 47. Those cases
held that the 1976 Act did not protect a female cohabitee where the parties were
joint tenants or joint owners, only where she was the sole tenant or sole owner of the
property. In Davis v Johnson, Lord Denning called together a ‘full’ court of five judges,
describing it as ‘a court of all the talents’. The court held by a majority of three that the
1976 Act does protect a female cohabitee even where she is not a tenant at all or only a
joint tenant. They declared B v B and Cantliff v Jenkins wrong and did not follow them.
Lord Denning was well aware that in doing this he was failing to follow horizontal
precedent. He said however:
On principle, it seems to me that, while this court should regard itself as normally bound
by a previous decision of the court, nevertheless it should be at liberty to depart from
it if it is convinced that the previous decision was wrong. What is the argument to the
contrary? It is said that if an error has been made, this court has no option but to continue
the error and leave it to be corrected by the House of Lords. The answer is this: the
House of Lords may never have an opportunity to correct the error; and thus it may be
perpetuated indefinitely, perhaps forever.
The case was eventually appealed to the House of Lords. The decision of the House
of Lords was that B v B and Cantliff v Jenkins should be overruled. However, it took the
opportunity to make an unequivocal statement about stare decisis in the Court of
Appeal. Lord Diplock said:
The rule as it has been laid down in the Bristol Aeroplane case had never been questioned
thereafter until … Lord Denning conducted what may be described … as a one-man
crusade with the object of freeing the Court of Appeal from the shackles which the
doctrine of stare decisis imposed upon its liberty … In my opinion, this House should take
this occasion to reaffirm expressly, unequivocally and unanimously that the rule laid down
in the Bristol Aeroplane case is still binding on the Court of Appeal.
This was a very explicit disapproval of Lord Denning’s approach. In his memoirs after
retirement, Lord Denning referred to Davis v Johnson as his most ‘humiliating defeat’
and a ‘crushing rebuff’.
Horizontal precedent in the Court of Appeal (Criminal Division)

In principle, precedent in the Criminal Division of the Court of Appeal is the same as
in the Civil Division. However, a somewhat more flexible approach to precedent is
taken in the Criminal Division if the Court believes that the law has been misapplied in
a precedent. This is because of the seriousness of cases dealt with, the fact that they
may affect the liberty of citizens and the serious social consequences of conviction for
criminal offences. Guidance on how this flexibility operates was given by Lord Goddard
CJ in the case of R v Taylor [1950] 2 All ER 170, who said that normally the principles in
Young v Bristol Aeroplane apply, but that the Court also has wider power to depart; if the
Court is to depart from one of its previous decisions then a full Court is essential; and
finally that the power should be exercised in favour of the citizen.

6.2.3 Divisional Courts of the High Court

Since the Divisional Courts have mostly appellate jurisdiction, the rules of precedent
are similar to those in the Court of Appeal.
Vertical precedent Divisional Courts of the High Court are bound by decisions of the
Supreme Court, previous decisions of the House of Lords and the Court of Appeal.
Decisions of the Divisional Courts are binding on inferior courts.
Horizontal precedent The Divisional Courts are normally bound by their own previous
decisions, subject to the exceptions in Young v Bristol Aeroplane. When the courts are
not exercising appellate powers, they are in the same position as the High Court.
4. The High Court The High Court is bound by the Supreme Court, previous decisions
of the House of Lords, the Court of Appeal and Divisional Courts. Its decisions bind
all inferior courts and tribunals. However, the High Court does not regard itself
as bound by its own previous decisions, although they are regarded as highly
persuasive.
5. Crown Court The Crown Court is bound by decisions of the superior courts, and
its own decisions are binding on the courts below it in the hierarchy. Decisions on
points of law are persuasive but not binding precedents, although inconsistent
decisions can lead to uncertainty. An obvious example is the issue of marital rape.
Before the case of R v R was finally decided in the House of Lords in 1991, cases
dealing with marital rape had come before the Crown Court sitting in different
parts of England. The courts had reached different decisions. The question for the
courts was whether a man could be criminally liable for raping his wife. The law
until this point was based on an historic principle set out in Hale’s History of the
pleas of the Crown (1736) that on marriage a woman gave irrevocable consent to
sexual intercourse with her husband. In the case of R v R [1991] 1 All ER 747, the Crown
Court sitting in Leicester accepted that consent to intercourse was implied from
the fact of marriage. Some three months later, in the case of R v C [1991] 1 All ER 755,
the Crown Court sitting in Sheffield declined to follow that decision and held that
a husband could be guilty of raping his wife. In a third case in the same year, R v J
[1991] 1 All ER 759, the Crown Court sitting in Teesside refused to follow R v C.
The case of R v R was appealed to the House of Lords [1991] 2 All ER 481, where the
House of Lords held that it was unlawful for a man to have sexual intercourse with any
woman without her consent. The original proposition no longer reflected the status of
wives in modern society, where marriage is viewed as a partnership of equals. This case
is an interesting example of the judiciary appearing to legislate.
6.2.4 The Judicial Committee of the Privy Council (‘Privy Council’ or ‘JCPC’)
Under normal rules of precedent, decisions of the Privy Council do not bind English
courts, although the decisions have strong persuasive authority because of the
seniority of the judges who sit in the Privy Council. However, a recent case casts a new
light on this established principle. In the case of Willers v Joyce [2016] UKSC 44, the
Supreme Court gave an important clarification on the precedent value of decisions of
the Privy Council. In this case, the judge at first instance had had to consider a House
of Lords case which would lead her to strike out the claim in question, and also a more
recent Privy Council case which would lead to a different legal result.
The Supreme Court made it clear in its judgment that the courts should normally
follow the usual rules of precedent, and therefore not follow a decision of the Privy
Council if it conflicted with the decision of a court that did set precedents (e.g. the
Supreme Court). However, as the Privy Council is in practice often made up of Justices
of the Supreme Court, it is open to them to say that decisions of other courts (e.g. the
Court of Appeal or the Supreme Court) are wrong, and that the Privy Council decision
should be treated as representing the law of England and Wales. If the Privy Council
has made this statement that a decision, is to be treated as being the law, then its
decision would be binding as a matter of precedent.

The Supreme Court sat in a panel of nine justices, rather than the more usual five,
recognising that this was an important case. Although, to a large extent, the judgment
set out the accepted rules of precedent, the decision that the Privy Council could
in some circumstances overrule the Supreme Court or Court of Appeal was seen as
controversial by some. Writing in the Law Quarterly Review, Peter Mirfield makes the
colourful comment that:
The positive objection to the reasoning in Willers v Joyce is that it is wrong in principle. In
short, the judges of the SC sit under that banner only, those of the JCPC under a different
one. There is no such state of being as ‘judgeness’. Indeed, it is almost as though the SC is
embracing a dinner party theory of precedent. If their Lordships were to dine together,
and all were to agree that some decision of the SC or HL was wrong, I take it that we
would not expect a report of their discussions and conclusion to appear in The Times legal
section, nor indeed on the website of the Supreme Court of the United Kingdom.
6.2.5 The European Court of Human Rights

The ECtHR is an international court sitting in Strasbourg and does not fit neatly into
the system of precedent. The relationship between the ECtHR and the House of Lords/
Supreme Court has been the subject of some debate in England in recent years and the
subject of a number of judicial speeches. In several Supreme Court cases the judiciary
have commented on the extent to which the UK Supreme Court is, or is not, bound by
decisions of the ECtHR.
The basic relationship between the English courts and the ECtHR is set out in s.2
of the Human Rights Act (HRA) 1998. Section 2(1) provides that a court or tribunal
determining a question which has arisen in connection with a convention right must
‘take into account’ any judgment, decision, declaration or advisory opinion of the
ECtHR. This suggests that the decisions of the ECtHR are not completely binding on UK
courts. It is clear, however, that there are different views among commentators and
the senior judiciary as to the extent to which English courts are bound to follow the
jurisprudence of the ECtHR. Whereas some feel that to ‘take into account’ requires due
consideration of ECtHR jurisprudence, rather than being bound by it, other judges feel
that it would require very exceptional circumstances for the English courts to depart
from a ECtHR decision. The phrasing of the obligation to ‘take into account’ decisions
of the ECtHR was not a phrase previously used in the context of judicial precedent; the
novelty of this phrase has given rise to the case law on what exactly it means and what
it requires the courts to do.
In a lecture in December 2011 (and published in 2012), Lord Irvine, the Lord Chancellor
responsible for introducing the HRA 1998, argued that Supreme Court judges have a
‘constitutional duty’ to reject ECtHR decisions they consider flawed and ‘should not
abstain from deciding the case for themselves’. Lord Irvine was concerned that up to
this point the courts had been treating themselves as being bound by the case law of
the ECtHR, which was not the correct approach under the statutory wording.
Case law provides examples of different standpoints, and the approach of the courts
has changed over time. In R (on the application of Alconbury Developments Ltd) v
Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, the
House of Lords held that in the absence of some special circumstances ‘the court
should follow any clear and constant jurisprudence of the European Court of Human
Rights’. This decision was followed in Ullah [2004] UKHL 26, in which Lord Bingham said
that the duty of national courts is ‘to keep pace with the Strasbourg jurisprudence as it
evolves over time: no more, but certainly no less’.
A rather different approach was taken by the UKSC in the leading case of R v Horncastle
[2009] UKSC 14, in which the question was whether the English common law rule on
the use of hearsay evidence in criminal trials breached Article 6 of the ECHR (right
to a fair trial). In this case, the court declined to follow the decision of the Grand
Chamber in Al-Khawaja v UK [2009] 49 EHRR 1, which held that Article 6 requires as an
absolute rule that no conviction can be based solely or to a decisive extent on hearsay
evidence. Lord Phillips said that a domestic court would normally apply the principles

established by the ECtHR, but where there was a failure of the Strasbourg court to
appreciate and accommodate ‘our domestic process’, then the UKSC could decline to
follow a ruling of the ECtHR.
Interestingly, following the Horncastle decision, the ECtHR reconsidered the case of
Al-Khawaja v UK (2011). They made some concessions to the reasoning of the UKSC and
accepted that hearsay evidence could be relied upon under certain circumstances.
The ECtHR held that the use of hearsay was not inevitably a breach of Article 6. This
is an example of the way in which there can be a constructive dialogue between the
ECtHR and domestic courts. It suggests that there is some flexibility in the approach
to precedent between the UKSC and ECtHR, although the UKSC continues to hold to
the view that it normally follows the ECtHR unless there is a very strong reason for
departing from a Strasbourg decision.
This flexible approach was again articulated in the case of Manchester City Council v
Pinnock [2010] 3 WLR 1441. Lord Neuberger said (at para.48):
This court is not bound to follow every decision of the European court. Not only would
it be impractical to do so: it would sometimes be inappropriate, as it would destroy the
ability of the court to engage in the constructive dialogue with the European court which
is of value to the development of Convention law…Of course, we should usually follow a
clear and constant line of decisions by the European court (Ullah)…But we are not actually
bound to do so or (in theory, at least) to follow a decision of the Grand Chamber. As Lord
Mance pointed out in Doherty…section 2 of the 1998 Act requires our courts to ‘take
into account’ European court decisions, not necessarily to follow them. Where, however,
there is a clear and constant line of decisions whose effect is not inconsistent with some
fundamental substantive or procedural aspect of our law, and whose reasoning does not
appear to overlook or misunderstand some argument or point of principle, we consider
that it would be wrong for this court not to follow that line.
In the controversial case of Chester v Secretary of State for Justice [2013] UKSC 63, the
UK Supreme Court was faced with a decision of the Grand Chamber of the ECtHR that
UK domestic legislation which provided for an automatic ban on convicted prisoners
voting in UK elections was incompatible with Article 3 of Protocol 1 of the ECHR, which
guarantees
free elections … under conditions which will ensure the free expression of the opinion of
the people in the choice of the legislature.
Prisoners serving a custodial sentence in the UK did not have the right to vote,
as set out in s.3 of the Representation of the People Act 1983, as amended by the
Representation of the People Act 1985.
In 2004 the ECtHR had given a ruling in the case of Hirst v UK on the question of
whether the UK legislation was in breach of the ECHR. Seven judges at the ECtHR ruled
that the UK’s ban on prisoners voting breached Article 3 of Protocol 1 of the ECHR. The
UK Government subsequently appealed the decision and in October 2005 the Grand
Chamber of the ECtHR held, by a majority of 12 to five, that the UK ban on prisoners’
voting rights was a violation of Article 3 Protocol 1 (right to free elections) – Hirst v UK
(No 2) [2005] ECHR 681. The decision in Hirst was followed by Greens v UK and Scoppola
v Italy, in which the ECtHR confirmed its decision that a blanket prohibition of this
nature was an indiscriminate restriction on a vitally important right and, as such, was
incompatible with Article 3 of Protocol 1.
When the issue was raised again before the Supreme Court in Chester in 2013, the
Court held that the HRA 1998 requires the Court to ‘take into account’ decisions of the
ECtHR, not necessarily to follow them, and this enables the national courts to engage
in a constructive dialogue with the ECtHR. However, the UKSC held that the prohibition
on prisoner voting in the UK had twice been considered by the Grand Chamber of the
ECtHR and each time it was found to be incompatible with the ECHR. Lord Mance held
that in these circumstances (at para.27):

It would have then to involve some truly fundamental principle of our law or some most
egregious oversight or misunderstanding before it could be appropriate for this Court
to contemplate an outright refusal to follow Strasbourg authority at the Grand Chamber
level.
In the same case Lord Sumption seemed to echo Lord Mance’s view, saying that:
A decision of the European Court of Human Rights…is an adjudication by the tribunal
which the United Kingdom has by treaty agreed should give definitive rulings on the
subject. The courts are therefore bound to treat them as the authoritative expositions of
the Convention …
(at para.121)
The case of Chester confirmed that the dominant approach of the UKSC is that it
normally expects to follow the jurisprudence of the ECtHR unless the matter at issue
involves some fundamental principle of English law.
The recent case of R (Hallam) v Secretary of State for Justice [2019] UKSC 2 casts some
doubt on this approach, although it is too early to tell whether this heralds a change
in the extent to which the domestic courts will follow Strasbourg jurisprudence. In
that case, the question was whether the Supreme Court would follow the previous
Supreme Court precedent in R (Adams) v Secretary of State for Justice [2011] UKSC 18 or
the more recent decision of the ECtHR in Allen v United Kingdom (app. no. 25424/09).
A majority of the Supreme Court in Hallam chose to follow the Supreme Court
precedent rather than the ECtHR case law. The Supreme Court Justices gave a number
of different reasons for this approach, and further case law will be needed to show
how the relationship between the Supreme Court and the ECtHR may change in the
future.
1. Why did the House of Lords issue the Practice Statement in 1966?
2. What were the circumstances in which the House of Lords envisaged being
prepared to overrule earlier decisions?
3. Why has the House of Lords been cautious in using the power to overrule?
4. How many exceptions are there to the rule in Young v Bristol Aeroplane? Briefly
summarise each of the exceptions.
5. Why did Lord Denning think that the Court of Appeal should be allowed to
overrule its own earlier decisions?
6. What principle did the House of Lords confirm in Davis v Johnson?
7. To what extent is the UK Supreme Court bound by the jurisprudence of the

ECtHR under the provisions of the HRA 1998?
8. How does Lord Irvine’s view of the meaning of s.2 of the HRA 1998 differ from
the view of Lord Slynn as expressed in the Alconbury case and Lord Bingham as
expressed in the Ullah case?
9. Did Lord Neuberger take a different view in the Pinnock case?
10. What view did Lord Mance and Lord Sumption take in the Chester case on the
question of following the jurisprudence of the ECtHR?

‘Although the doctrine of binding precedent may have many merits, the promotion
of certainty and predictability is not one of them.’
Describe how the doctrine of binding precedent operates and identify and explain
the advantages and disadvantages of the doctrine with particular reference to
certainty and predictability.


The question requires you to:
u describe the doctrine of binding precedent and how it operates
u explain the advantages and disadvantages of precedent
u discuss certainty and predictability in relation to precedent. Avoid writing a
general essay on precedent and focus your essay on certainty and predictability
to gain higher marks.
You could mention the following points.
1. Describe the doctrine of precedent – the English common law relies on binding
precedent to create the common law. You might contrast binding precedent
(ratio decidendi) with obiter dicta and/or persuasive precedents.
2. The doctrine of binding precedent is often explained on the basis of doing

justice through consistency, in that like cases should be treated alike. According
to this argument, in following precedent judges are creating certainty and
predictability in the law and an efficient and fair system of justice.
3. You should describe the vertical and horizontal dimensions of precedents, and
how these contribute to consistency and predictability. With regard to the
Supreme Court, this should include the Practice Statement 1966 and its use by
the House of Lords/Supreme Court, and relevant cases, such as Knuller v DPP, R v
Shivpuri, British Railways Board v Herrington, Murphy v Brentwood District Council
and Austin v Mayor and Burgesses of the London Borough of Southwark. These
illustrate how infrequently the Practice Statement has been used, and this,
as well as the content of the Practice Statement, point towards certainty and
predictability.
4. In relation to the Court of Appeal, another relevant area could be discussion of

Davis v Johnson and Lord Denning’s unsuccessful attempt to extend the effect of
the 1966 Practice Statement to the Court of Appeal. This was unsuccessful, which
again points to the courts’ concern to remain consistent and predictable. The
Young v Bristol Aeroplane exceptions in the Court of Appeal also show that the
Court of Appeal is not permitted to stray too far from established precedents;
the scope of the three rules in this case might be discussed.
5. You may want to consider the other side of the argument – that the concern for
consistency and predictability makes the law inflexible and leads to the overly
slow development of the law.

7 The interpretation of statutes
Contents
7.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
7.2 Why is the interpretation of statutes so difficult? . . . . . . . . . . . . . 75
7.3 Giving effect to Parliament’s intention . . . . . . . . . . . . . . . . . . 76
7.4 Historic approaches to interpretation . . . . . . . . . . . . . . . . . . 76
7.5 Aids to interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . 79

Learning outcomes
u understand why statutory interpretation presents challenges for the judiciary
u understand the constitutional responsibility of the judiciary in relation to
statutory interpretation
u understand the difficulty of determining the ‘legislative intent’ of Parliament
u explain historic judicial ‘approaches’ to statutory interpretation
u understand how different approaches may lead to different outcomes.
Core text
¢ Holland and Webb, Chapter 8 ‘Making sense of statutes’ and Chapter 9
‘Interpreting statutes’.
Essential reading
¢ House of Commons Library Briefing Paper ‘Pepper v Hart’, 22 June 2005, at https://
researchbriefings.parliament.uk/ResearchBriefing/Summary/SN00392
¢ Steyn, J. ‘Pepper v Hart; a re-examination’, Oxford Journal of Legal Studies 21(1)

2001, pp.59–72 (available through the Online Library).
Further reading
¢ McLeod, Chapter 18 ‘Plain meanings, mischiefs, purposes and legislative
intentions’.
¢ Stychin, C.F.and L. Mulcahy Legal methods and systems: texts and materials.
(London: Sweet & Maxwell, 2010) fourth edition [ISBN 9780414041837] Chapter
5 ‘Statutory interpretation: introduction to legislation’ and Chapter 6 ‘Statutory
interpretation: the search for legislative intention’.
¢ Sales, P. ‘Modern statutory interpretation’, article based on the text of a

lecture delivered at the Society of Legal Scholars Conference in 2016, at www.
statutelawsociety.co.uk/wp-content/uploads/2016/12/Modern-Statutory-
Interpretation.-P.Sales_.pdf
¢ Sir John Laws ‘Statutory interpretation – the myth of parliamentary intent’,

Renton Lecture, November 2017, at www.statutelawsociety.co.uk/wp-content/
uploads/2017/11/The-Myth-of-Parliamentary-Intent-text.pdf
¢ Burrows, A. ‘Statutory interpretation’, Hamlyn Lecture 2017, 1 November 2017,

at www.law.ox.ac.uk/news/2017-11-10-hamlyn-lecture-2017-andrew-burrows-
statutory-interpretation (video lecture).
¢ Bennion, F. Statute law. (London: Longman, 1990) [ISBN 9780851215808].

Legal system and method 7 The interpretation of statutes page 75
7.1 Introduction
Once Parliament has passed legislation it is for the judiciary to make sense of the
provisions in statutes – to interpret or construe the meaning of the words used. The
interpretation of statutes is a critical function of the judiciary. Despite England and
Wales being a common law jurisdiction, in the modern legal system there is a large
and growing volume of legislation, as government seeks greater regulation of social
and economic activity. In this sense, statutory interpretation is one of the main tasks
carried out by the courts.
The role of the judiciary in relation to the legislature is to ‘give effect’ to Parliament’s
intention. This means that in dealing with statutory provisions the judiciary must
interpret or construe the meaning of words in a statute in a way that is consistent with
what Parliament intended. As expressed by Tindal CJ in the Sussex Peerage Claim (1844):
The only rule for the construction of Acts of Parliament is that they should be construed
according to the intent of the Parliament which passed the Act.
However, there are two fundamental complexities in this simple statement. First, the
natural limitations of language mean that interpreting the meaning of words can
sometimes be fraught. Words may have several different meanings depending on the
context, and the meaning of words changes over time. Different judges in the same
case may interpret words differently, and it is necessary to understand the approach
taken by that the judiciary to this difficult task. The second challenge for the judiciary
in giving effect to Parliament’s intention is that it is not always clear precisely what
Parliament did intend when it used a particular word or phrase in an Act of Parliament.
7.2 Why is the interpretation of statutes so difficult?

Interpretation is an essential step in human communication. We all interpret the
meaning of spoken and written words to ‘make sense’ of what is being read or heard.
However, there are special challenges in interpreting statutes. As explained by Francis
Bennion in his famous book Statute law (1990), there are a number of features of
statutes that make interpretation difficult. These include:
u Ellipsis – when the draftsperson refrains from using certain words that they regard
as implied automatically.
u Use of broad terms (wide meaning); for example, ‘vehicle’ clearly includes motor
cars and buses, but what else does it include? In addition, the meaning of broad
terms may change over time; for example, does the word ‘family’ include a
common-law spouse?
u Unforeseeable developments – when there have been social or economic changes

that influence the meaning of words.
u Inadequate use of words – such as drafting and printing errors.
The way in which a judge interprets the meaning of a particular word may make the
difference between a defendant in a criminal trial being found innocent or guilty. The
judge must decide the meaning, scope and applicability of legislation to a particular
fact situation. The distinguished jurist A.V. Dicey noted how important the interpretive
work of the judges is:
Statutes themselves, though manifestly the work of Parliament, often receive more than
half their meaning from judicial decisions.
(Dicey, A.V. Lectures on the relation between law and public opinion in England during the
nineteenth century. (London: Macmillan, 1905; 2001 edn) p.486)
Some of the cases included in this chapter demonstrate clearly the practical impact of
differing judicial interpretations of statutory provisions.

7.3 Giving effect to Parliament’s intention

Whatever approach judges take to statutory interpretation, they are always seeking to
give effect to Parliament’s intention. That is their constitutional role and they take that
responsibility seriously. In Pepper v Hart [1993] 1 All ER 42, Lord Browne-Wilkinson said:
Statute law consists of the words that Parliament has enacted. It is for the courts to
construe those words, and it is the court’s duty in so doing to give effect to the intention
of Parliament.
However, different judges approach the task in different ways. Some may think that
the best way to give effect to Parliament’s intention is to stay very close to the words
that Parliament actually used via a literal approach to interpretation. Other judges
might feel that they are better able to give effect to Parliament’s intention by seeking
to understand the purpose of the legislation and then reading words in or out in order
to achieve that aim. Different approaches have been preferred at different points in
the development of the common law.
This notion of parliamentary intent is contested as a meaningful concept by some.

Sir John Laws (2017) argues that it is a misleading and unhelpful concept, because
in reality there is no such thing as the intention of Parliament. This is because
intention can only properly be ascribed to the mind of a single person. Parliament
consists of many people (the Members of Parliament), so how can they all have the
same intention? Even among Members of Parliament who vote in favour of a piece
of legislation, they will all have different opinions of what that legislation actually
means. Sir John Laws considers that a more appropriate test is to look for the purpose
of the legislation, or the policy behind the statute. He goes further, arguing that the
construction of a statute should also be informed by constitutional principles that are
independent of parliamentary intent: reason, fairness and the presumption of liberty.
Richard Ekins takes a different view – that it is possible to speak of parliamentary

intent even though Parliament consists of a group of people. He sees the concept of
intention differently in this context: legislative intent is to be found in their joint plan
to organise the community and to make laws. The intentions of individual legislators
in respect of particular legislative acts are largely irrelevant. (This argument is
explored in Richard Ekins’ speech at the Statute Law Society Conference 2008, ‘What is
legislative intent? Its content and structure’, October 2008, at www.statutelawsociety.
co.uk/wp-content/uploads/2014/01/RichardEkins.pdf)
7.4 Historic approaches to interpretation

Francis Bennion (1990) explains that the duty of the interpreter is to arrive at what
he calls the ‘legal meaning’ of the enactment, which is not necessarily the same as its
grammatical (or literal) meaning. He says:
There is a clear conceptual difference between grammatical meaning apart from legal
considerations and the overall meaning taking those considerations into account. While
it may sometimes be difficult to draw in practice, this distinction is basic in statutory
interpretation.
So, in seeking to find the ‘legal meaning’ of a statutory provision, there is no rule of
law that dictates which approach a judge must take. It is largely up to the discretion
of the individual judge. Historically, judges have tended to adopt one of a number of
approaches, sometimes referred to as the ‘three rules of interpretation’. These so-
called ‘rules’ are not rules at all, but overall approaches to interpretation that might be
taken by the courts. It is worth briefly noting the differences between the approaches
and the impact that a different approach to interpretation might have on the outcome
of a case.
The courts have favoured different approaches to statutory interpretation at different

points in history, depending on the judges’ perception of their constitutional role
at any given period. Heydon’s Case (1584) 3 Co Rep 7a, 76 ER 637 took a broad view of
statutory interpretation and provides the classic statement of the ‘mischief rule’. This

essentially required the courts to ascertain the mischief, or defects, of the common
law that the statute attempted to remedy. This broad approach to interpretation
took place in the context of a time before the sovereignty of Parliament had been
completely established and indeed when Parliament met infrequently, so that there
was a need for judges to reinterpret statutes.
The later literal approach, prevalent in the 18th and 19th centuries, must be seen in the
context of the Glorious Revolution of 1688 and the increase in the power of Parliament
and the establishment of parliamentary supremacy. The courts were only willing to
interpret statutes in the strict literal sense, and any changes to interpretation had to
be framed by Parliament in the clearest possible terms. Increasing amounts of law
came to be governed by statute rather than the common law, and so the mischief
approach, with its focus on statutes remedying the defects of the common law, came
to be less relevant. It was accepted that, as Tindal CJ said in the Sussex Peerage Case
(1884) 11 Cl & Fin 85, at 143:
If the words of the statute are of themselves precise and unambiguous, then no more can
be necessary than to expound those words in their natural and ordinary sense. The words
themselves do, in such case, best declare the intention of the legislature.
The literal approach has now given way to purposivism as the dominant means of
interpretation. In Chapter 8, we will discuss how the traditional approaches have now
largely given way to more purposive methods of statutory interpretation and how
statutory interpretation has been affected by both EU law and the Human Rights Act
1998.
7.4.1 The literal rule or ‘literalism’

This approach requires the court to apply the ordinary English meaning of words used
by Parliament. The approach was explained by Lord Esher MR in the case of R v The
Judge of the City of London Court [1892] 1 QB 273:
If the words of an Act are clear, you must follow them, even though they lead to a manifest
absurdity. The court has nothing to do with the question whether the legislature has
committed an absurdity.
An ancient example of the use of the literal rule is the case of R v Harris (1836) 7 Car & P
446, 173 ER 198, which involved interpreting an offence to ‘unlawfully and maliciously
stab, cut or wound any person’. The court decided that a defendant who bit off the
end of the victim’s nose had not committed the offence. The court held that the words
in the statute indicated that for the offence to be committed some form of instrument
had to be used.
A more modern case demonstrates how different judges in the same case can
interpret the meaning of a single word differently, thus leading to different outcomes.
The case of R v Maginnis [1987] 1 All ER 907 (HL) concerned the interpretation of s.5(3) of
the Misuse of Drugs Act 1971, which provides that:
It is an offence for a person to have a controlled drug in his possession, whether lawfully
or not, with intent to supply it to another …
The police found a package of cannabis resin in the defendant’s car. The defendant said
that the package did not belong to him, but that it had been left in his car by a friend
for collection later. The defendant was convicted at first instance and appealed against
conviction on the ground that an intention to return the drug to its owner did not
amount to an intention to ‘supply’ the drug within the meaning of the statute. In the
House of Lords, the majority, adopting a ‘literal’ approach, held that a person left with
drugs intending to return them did have the necessary intent to ‘supply’. However,
a dissenting judgment was given by Lord Goff. He held that the offence was aimed at
drug pushers. The defendant was not a pusher and should have been charged with a
lesser offence of unlawful possession.

… I do not feel able to say that either the delivery of goods by a depositor to a depositee,
or the redelivery of goods by a depositee to a depositor, can sensibly be described as an
act of supplying goods to another. I certainly cannot conceive of myself using the word
‘supply’ in this context in ordinary speech. In ordinary language the cloakroom attendant,
the left luggage officer, the warehouseman and the shoe mender do not ‘supply’ to their
customers the articles which those customers have left with them.
Another case which led to a difference of view between judges on the interpretation
of the statute is that of R v Brown [1996] 1 All ER 545 (HL). This case concerned s.5(2)(b)
of the Data Protection Act 1984, which provides that:
It is an offence knowingly or recklessly to use personal data other than for the purpose
described in the relevant entry in the register of data users …
A police officer twice used the police national computer to check the registration
numbers of vehicles owned by debtors of clients of his friend’s debt collection
company. There was no evidence that he passed on the data to his friend, merely
that he had accessed the data. A majority of the House of Lords, adopting a literal
approach, held that the offence was not committed by a person who merely accesses
information. Data is only ‘used’, and the offence committed, if the defendant goes
on to make unauthorised use of it, for example by passing it on to someone else. The
court held that they had reached this conclusion by giving the word ‘use’ its ordinary
meaning. However, the dissenting minority, adopting a more ‘purposive’ approach (i.e.
looking behind the words to the intention of the legislation), held that the word ‘use’
should be given a broad construction in order to achieve the purpose of the Act, which
was the protection of citizens against invasions of privacy.
7.4.2 The golden rule

This is a modification of the literal rule. The judge begins by adopting a literal
interpretation, but if this leads to an ‘absurd’ result the judge may modify the words
to some extent. This approach was explained by Lord Wensleydale in the case of Grey v
Pearson (1857) 6 HL Cas 106:
… the grammatical and ordinary sense of words is to be adhered to, unless that would lead
to some absurdity, or some repugnance or inconsistency with the rest of the instrument,
in which case the grammatical and ordinary sense of the words may be modified so as to
avoid the absurdity and inconsistency, but no further.
This concept of absurdity is a very subjective one: how is it to be decided when

something is absurd? This is the most significant problem with the golden rule, and
one reason why it is regarded as problematic. The use of the golden rule is actually
rare in practice.
An example of the use of the rule is the case of Adler v George [1964] 2 QB 7. Under
section 3 of the Official Secrets Act 1920, it was an offence to obstruct Her Majesty’s
Forces in the vicinity of a prohibited place. Adler was arrested for obstructing forces
within a prohibited place. He argued that he was not in the vicinity of a prohibited
place, since he was actually in a prohibited place (an air base). The court applied the
golden rule to extend the literal wording of the statute to cover the action committed
by the defendant. Had the literal rule been applied, it would have produced absurdity,
since someone protesting near the base would be committing an offence whereas
someone protesting in the base would not. See also the case of Re Sigsworth [1935]
Ch 89.
7.4.3 The mischief rule

This is the oldest approach to statutory interpretation. As set out in Heydon’s Case
(1584) 3 Co Rep 7a, 76 ER 637, the approach involves the judge taking several steps in
order to reach an interpretation. The first step is to consider the state of the common
law before the Act was passed. The second is to consider the ‘mischief’ (shortcoming)
that the Act was intended to cover. The judge then interprets the Act in a way that
achieves the intended purpose. To this extent the approach of the mischief rule is very
similar to the modern purposive approach discussed in Chapter 8. A classic example

of the use of the mischief rule is the case of Smith v Hughes [1960] 2 All ER 859. This case
involved interpretation of s.1 of the Street Offences Act 1959. The provision provided:
It shall be an offence for a common prostitute to loiter or solicit in a street or public place
for the purposes of prostitution.
The accused was in a house, tapping on the window to attract the attention of passers-
by. She argued that she was not ‘in the street’. Instead of adopting a literal approach,
the court considered what ‘mischief’ the Act was aimed at. Lord Parker CJ said:
For my part I approach the matter by considering what is the mischief aimed at by this Act.
Everybody knows that it was an Act intended to clean up the streets, to enable people to
walk along the streets without being molested by common prostitutes.
Lord Parker found a secondary meaning in the words. It was the ‘solicitation’ which
must take place in the street, not the person who does the soliciting.
The mischief rule stems from a period when the primary source of law was the
common law, not legislation (which is the principal source of law today). The role
of legislation was to supplement the common law, or to deal with some defect
or ‘mischief’ of the common law. In modern times, legislation is not restricted to
addressing defects in the common law, but promotes positive social, economic or
political ends. In looking at these general purposes, courts can now be said to be
adopting a broader purposive approach.
7.5 Aids to interpretation
7.5.1 Presumptions of interpretation

Presumptions are a sort of judicial bias, a preference which a judge has for coming to
one conclusion rather than another. Many of them are used in order to save Parliament
the trouble of saying what it is not trying to achieve. All presumptions can be displaced
if Parliament so wishes. Parliament’s wish to displace a presumption can be shown
explicitly or implicitly. These are some examples of presumptions:
u Statutes do not have retrospective effect. Statutes are presumed to be prospective,

that is, to operate only in relation to events which take place after the Act comes
into force. This presumption is especially strong in the area of criminal law. An
exception to this presumption is s.58(8) of the Criminal Justice Act 2003, which
allows the prosecution in a criminal case to appeal against acquittal.
u Changes to basic rules of common law must be clear. If Parliament means to alter
some principle which the common law considers to be important, it must make its
intention to do so clear, or else the common law principle will survive. An example
is the case of Leach v R [1912] AC 305. Arguably, this is a controversial presumption:
as Parliament is supreme, it can legislate in any way it chooses, including altering
the common law.
7.5.2 Rules of language

These language rules are similar to presumptions and like presumptions, they can
always be displaced expressly or by implication. They are different from presumptions
in that they are not exclusively legal in nature. Any sort of text can be subjected to
these rules. The following are some of the rules of language.
Ejusdem generis rule

General words which follow specific words must be read in the light of those specific
words, provided that the specific words are examples of some particular class
(‘genus’). An example is the Sunday Observance Act 1677 which provides that:
… no tradesman, artificer, workman, labourer or other person whatsoever [shall work on
Sundays].

Many cases exist on the question of what occupations are ejusdem generis with the list.
Parliament cannot have intended all occupations to be covered by the Act, because it
would have been easier to say, ‘No person whatsoever shall work on a Sunday.’ This is
the justification for the ejusdem generis rule.
Noscitur a sociis (a word is known by the company it keeps)

This rule is similar to ejusdem generis. It states that all words derive their meaning
from their immediate context. The rule is very useful when dealing with ambiguities
in individual words where the ambiguous word is used in close proximity to other
similar words. An example is the case of Pengelly v Bell Punch Co Ltd [1964] 2 All ER 945,
concerning s.28 of the Factories Act 1961, which provided that: ‘Floors, steps, stairs,
passageways and gangways [must be kept free from obstruction].’ The court held that
‘floors’ did not include areas designed and used for the storage of goods.
7.5.3 Intrinsic material

All of the components of an Act of Parliament can be used to assist in the process of
interpretation. These include:
u the long title of the Act, which contains a brief description of the purposes of the
Act
u the short title, which is a short name given by Parliament so that the Act can be
easily cited (e.g. the Theft Act 1968)
u a preamble, if it exists (rare in modern Acts). A preamble is used to set out in

detail the reasons for the existence of an Act. They always begin with the word
‘WHEREAS …’
u the enacting sections, which are the substance of the Act, with their subdivisions
into sections and subsections
u marginal notes, which give a brief explanation of the contents of a section
u headings, which give clues as to the contents.
7.5.4 Extrinsic material

Whereas the internal context is concerned simply with other parts of the Act under
consideration, the wider context is concerned with all other matters which a court
might wish to take into account in interpreting an Act.
Reports of debates in Parliament (Hansard)

Until 1992, courts were not permitted to look at reports of parliamentary debates
to help with statutory interpretation, either for the purposes of understanding the
mischief or of construing the words in question. The reason for this prohibition was set
out by Lord Reid in the case of Beswick v Beswick [1968] AC 58:
For purely practical reasons we do not permit debates in either House to be cited. It would
add greatly to the time and expense involved in preparing cases…moreover, in a very large
proportion of cases [Hansard] would throw no light on the question before the court.
Despite the prohibition on the use of Hansard, in the case of Davis v Johnson [1978] 1 All
ER 841 (CA), Lord Denning confessed that he had reached his view on the interpretation
of the relevant statute by reading what had been said in Parliament when the Act was
being debated. Lord Denning argued (at p.192):
Some may say — and indeed have said — that judges should not pay any attention to
what is said in Parliament. They should grope about in the dark for the meaning of an Act
without switching on the light. I do not accede to this view. In some cases Parliament is
assured in the most explicit terms what the effect of a statute will be. It is on that footing
that members assent to the clause being agreed to. It is on that understanding that an
amendment is not pressed. In such cases I think the court should be able to look at the
proceedings.

In the landmark case of Pepper v Hart [1993] 1 All ER 42, the House of Lords ruled that,
having regard to the purposive approach to construction of legislation the courts
had adopted in order to give effect to the true intention of the legislature, the rule
prohibiting courts from referring to parliamentary material as an aid to statutory
construction should be relaxed so as to permit reference to parliamentary materials
where:
1. the legislation was ambiguous or obscure or the literal meaning led to an absurdity
2. the material relied on or consisted of statements by a minister or other promoter

of the Bill, and
3. the statements relied on were clear.
There has been criticism of the decision in Pepper v Hart. You can get an idea of some
of these criticisms in the House of Commons Briefing Note on the case, which sets out
the following potential drawbacks of the decision:
u It could lead to longer and more costly cases, as lawyers might feel obliged
to consult Hansard. This was a concern for Lord McKay, who gave a dissenting
judgment in Pepper v Hart (see pp.614–16 of the judgment).
u Statements made in Parliament may not be reliable.
u There may be an over-reliance on Hansard in statutory interpretation cases.
Lord Steyn, writing extra-judicially, mounted an influential attack on the decision in

2001. He called into question whether Parliament can really be said to have a coherent
single intention (see discussion above), and whether a statement by a minister in
Parliament could be said to represent a unified intention. The statements of the
minister who is promoting the bill can only represent the government’s view on
what it would like the law to be, not the intention of Parliament. Lord Steyn argued
that to allow the government’s views to be taken into account in this way ignored
important constitutional principles that the courts should only interpret and apply
what Parliament has enacted, nothing more and nothing less. It is Parliament, not the
executive, which has constitutional power to make the law.
The courts have subsequently gone on to interpret the rule in Pepper v Hart quite
narrowly, requiring that the three requirements set out by the House of Lords be
strictly made out. The general approach is a considerable reluctance by the courts to
refer to Hansard.
Reports of Royal Commissions and similar bodies

These may be used to understand the nature of any problem that Parliament may
have intended to solve by its legislation, but not so as to understand the nature of the
solution to the problem that Parliament has adopted.
Other materials
The court may look at international treaties and other Acts of Parliament. Judges also
regularly refer to dictionaries to establish the ordinary meanings of English words
(if the word has no specific legal meaning), either in the present day or at the time
when the Act was passed. Dictionaries are to be used with care, as words can change
meaning over time and in different contexts, and different dictionaries can give
slightly different interpretations to the meaning of words.

1. Why is it necessary to interpret statutes?
2. What are the special challenges in dealing with statutory material?
3. What are judges seeking to do in interpreting statutes?
4. Is parliamentary intention a meaningful concept? Explain the reasons for your

answer.
5. What is the difference between the literal rule and the golden rule?
6. What is the basis for the mischief rule?
7. What practical difference might it make if judges differ in their approach to

interpretation?
8. Why might reports of debates in Parliament (Hansard) be useful to judges in

interpreting statutes?
9. Why did Lord Denning look at Hansard in the case of Davis v Johnson?
10. What criticisms can be made of the rule in Pepper v Hart?

8 Modern approaches to statutory interpretation
Contents
8.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
8.2 Purposive interpretation . . . . . . . . . . . . . . . . . . . . . . . . . 85
8.3 European influence on statutory interpretation . . . . . . . . . . . . . 86
8.4 The impact of the Human Rights Act 1998 on statutory interpretation . . 87

Learning outcomes
u understand the difficulty of determining the ‘legislative intent’ of Parliament
u explain modern judicial ‘approaches’ to statutory interpretation
u appreciate the influence of EU law and the Human Rights Act 1998 on statutory
interpretation.
Core text
¢ Holland and Webb, Chapter 10 ‘“Bringing rights home”: legal method and
Convention rights’ and Chapter 11 ‘European legal method’.
Essential reading
¢ Fennelly, N. ‘Legal interpretation at the European Court of Justice’, Fordham
International Law Journal 20(3) 1996, pp.656–79, at http://ir.lawnet.fordham.edu/
cgi/viewcontent.cgi?article=1526&context=ilj
¢ Ministry of Justice ‘Responding to human rights judgments: report to the Joint

Committee on Human Rights on the Government’s response to human rights
judgments 2017–18’, November 2018, at https://assets.publishing.service.gov.uk/
government/uploads/system/uploads/attachment_data/file/756346/responding-
human-rights-judgments-2017-18.pdf
¢ Wagner, A. and G. Barth ‘Judicial interpretation or judicial vandalism? Section

3 of the Human Rights Act 1998’, Judicial Review 21(2) 2016, pp.99–104 (available
through Academic Search Complete in the Online Library).
¢ Kavanagh, A. ‘The elusive divide between interpretation and legislation under

the Human Rights Act 1998’, Oxford Journal of Legal Studies 24(2) 2004, pp.259–85
(available in the Online Library).

u R (Quintavalle) v Secretary of State for Health [2003] UKHL 13, [2003] 2 AC 687.
u R v A (No 2) [2001] UKHL 25, [2002] AC 45.
Further Reading
¢ McLeod, Chapter 18 ‘Plain meanings, mischiefs, purposes and legislative
intentions’.
¢ Stychin and Mulcahy, Chapter 7 ‘Statutory interpretation: the impact of the law
of the European Union and European human rights law’.
¢ Sales, P. ‘Modern statutory interpretation’, article based on the text of a

lecture delivered at the Society of Legal Scholars conference in 2016, at www.
statutelawsociety.co.uk/wp-content/uploads/2016/12/Modern-Statutory-
Interpretation.-P.Sales_.pdf

Legal system and method 8 Modern approaches to statutory interpretation page 85
8.1 Introduction
The previous chapter included a discussion of some of the historical methods of
statutory interpretation. In more recent times, the courts have moved away from
literal approaches to interpreting statutes and scrutinising the precise wording of
the statute. The courts now take a more purposive approach to understanding the
meaning of statutes. Lord Bingham explained the court’s approach in R (Quintavalle) v
Secretary of State for Health [2003] 2 A.C. 687 (at para.8):
The basic task of the court is to ascertain and give effect to the true meaning of what
Parliament has said in the enactment to be construed. But that is not to say that attention
should be confined and a literal interpretation given to the particular provisions which
give rise to difficulty. Such an approach not only encourages immense prolixity in drafting,
since the draftsman will feel obliged to provide expressly for every contingency which
may possibly arise. It may also (under the banner of loyalty to the will of Parliament)
lead to the frustration of that will, because undue concentration on the minutiae of
the enactment may lead the court to neglect the purpose which Parliament intended
to achieve when it enacted the statute. Every statute other than a pure consolidating
statute is, after all, enacted to make some change, or address some problem, or remove
some blemish, or effect some improvement in the national life. The court’s task, within
the permissible bounds of interpretation, is to give effect to Parliament’s purpose. So the
controversial provisions should be read in the context of the statute as a whole, and the
statute as a whole should be read in the historical context of the situation which led to its
enactment.
In the same case, Lord Steyn stated that ‘ the pendulum has swung towards purposive
methods of construction…nowadays the shift towards purposive interpretation is not
in doubt’ (para.21).
Sales (2016) notes that this had a profound effect on how statutes are interpreted:
This makes the texture of argument about statutory interpretation much more open
and uncertain than a strict focus on grammatical meaning would allow. With reference
to a wider range of sources now permitted and required – unspoken constitutional
understandings and principles; inferences as to the purpose of the legislation; background
reports and statements in Parliament – it is harder to be sure, in advance of litigation and a
ruling by the courts, what legislation actually means.
The move towards purposive interpretation techniques has been influenced by

European methods of interpretation, and this chapter will consider the interpretation
of EU law in the English courts. It will also cover interpretation under the Human Rights
Act 1998, which gives the courts a particular interpretive obligation when rights under
the European Convention on Human Rights are at issue.
8.2 Purposive interpretation

Although similar to the mischief rule previously discussed, judges adopting a
purposive approach to interpretation are taking a wider view and essentially trying
to decide what Parliament intended to achieve in passing an Act. This 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. A clear statement of this approach comes from
the judgment of Denning LJ in Magor and St Mellons Rural District Council v Newport
Corporation [1950] 2 All ER 1226 (CA), [1952] AC 189 (HL):
We do not sit here to pull the language of Parliament to pieces and to make nonsense of
it. That is an easy thing to do and a thing to which lawyers are too often prone. We sit here
to find out the intention of Parliament and of ministers and 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.
At the time, this view was somewhat ahead of the interpretive curve and the approach
of Denning LJ was severely criticised when the case was appealed to the House of
Lords, on the ground that Lord Denning had gone beyond the proper role of the judge.

The concern was that the further judges move away from the language of the Act, the
more likely they are to be engaging in a legislative or quasi-legislative function. As Lord
Simonds commented in the Magor case in the House of Lords, ‘[Denning LJ’s views are]
a naked usurpation of the legislative function.’
In Pepper v Hart [1993] 1 All ER 42, the House of Lords accepted that the courts are
now ready to adopt an approach that seeks to give effect to the ‘true purpose’ of
legislation, and as a result will consider extraneous material that has a bearing on the
background to the legislation (see discussion of Pepper v Hart in Chapter 7).
Another important case in which the court adopted a purposive interpretation was
R (Quintavalle) v Secretary of State for Health [2003] UKHL 1,3 concerning research on
human embryos. In Quintavalle, the House of Lords had to consider the interpretation
of the Human Fertilisation and Embryology Act 1990. Section 1(1) of the Act defines an
embryo with reference to fertilisation (it is defined as ‘a live human embryo where
fertilisation is complete’). This was the only way in which embryos could be created
at the time the Act was passed. Scientific advances since, however, have allowed the
creation of embryos through a method that did not require fertilisation, through
a method of cloning. The question was whether embryos created by this method
could be covered by the Act. The House of Lords found that it was necessary to take
a purposive approach to interpretation, since the creation of live human embryos
through the cloning method ‘fell within the same genus of facts as those to which
the expressed policy of Parliament had been formulated’. In this case, the Court had
to interpret the statute not because of ambiguous statutory language or Parliament
overlooking an aspect of the law, but because scientific and medical technology had
advanced from the time the statute was enacted.
8.3 European influence on statutory interpretation
8.3.1 The continental approach to interpretation

One of the key differences between common law systems and civil law systems is the
way in which legislation is drafted and the role of the judiciary in the different systems
in giving effect to that legislation.
Within the continental legal tradition there are often different constitutional
structures involving written constitutions and constitutional courts. The substantive
law is to be found in comprehensive written codes and the role of the judiciary
in these systems is ‘quasi-legislative’ in interpreting codes that are drafted in
broad general language. By comparison, English statutes tend to be detailed and
relatively precise in their language. Moreover, because judges in states with written
constitutions are regarded as guardians of those constitutions, they generally feel
relatively free to depart from the wording of the code to ensure that it accords with
constitutional principles. Judges in civil law jurisdictions are used to ‘filling in gaps’ in
the codes or elaborating on the use of general words. They tend to adopt an approach
to interpretation that focuses on the underlying objectives of provisions rather than
seeking the meaning of particular words.
The Court of Justice of the European Union (CJEU) draws on a different legal tradition to
that of the common law, and is situated within the continental legal tradition. Judges
within the continental tradition tend to use what is referred to as the ‘teleological’
approach. This involves the court attempting to give a legislative provision an
interpretation that fits in with the general scheme of the legislation rather than
seeking to establish the subjective intention of the drafters of the text.

8.4 The impact of the Human Rights Act 1998 on statutory

interpretation
8.4.1 The interpretive obligation

When the government introduced the HRA 1998, it intended that both Acts of
Parliament and secondary legislation should be interpreted, so far as possible, to be
compatible with the European Convention on Human Rights. Previously, the English
courts were merely required to take the Convention into account in resolving any
ambiguity in a legislative provision.
Under the HRA 1998, the English courts must interpret legislation so as to uphold
the Convention rights unless the legislation itself is so clearly incompatible with the
Convention that it is impossible to do so. This ‘rule of construction’ applies to past as
well as to future legislation. To the extent that it affects the meaning of a legislative
provision, the courts are not bound by previous interpretations. This approach to
interpretation is contained within s.3(1) of the HRA 1998 (known as the interpretive
obligation), which provides that:
So far as it is possible to do so, primary legislation and subordinate legislation must be

read and given effect in a way which is compatible with the Convention rights.
Section 3(2) provides that s.3(1) does not affect the validity, continuing operation or
enforcement of any incompatible primary or delegated legislation.
Two strong promoters of the HRA, Lord Lester and Lord Pannick, writing about the
responsibility of the courts under s.3, said that:
The role of the court is not (as in traditional statutory interpretation) to find the true
meaning of the provision, but to find (if possible) the meaning which best accords with
Convention rights.
(Lester, A. and D. Pannick (eds) Human rights law and practice. (London: Butterworths,
2004) second edition [ISBN 9780406969712], p.34)
From the wording of s.3, it was, however, not completely clear when the Act was
passed what the courts were being asked to do when fulfilling the interpretive
obligation under the Human Rights Act: what exactly did ‘so far as it is possible’ mean?
On a narrower meaning, the courts were arguably being required to reject more
literal approaches to statutory interpretation and use other established techniques,
including the golden and mischief rules. On a broader construction of s.3, the courts
should adopt techniques that include ignoring statutory wording, or reading in extra
words or phrases, if this was necessary to achieve compliance with the Convention
rights. The courts have themselves decided on the breadth of their approach to the
interpretive obligation, and this is discussed below with reference to cases which
illustrate the approaches taken by the courts.
8.4.2 Declarations of incompatibility

If it proves to be impossible to read and give effect to domestic legislation in
a way which is compatible with the ECHR, the court can issue a declaration of
incompatibility. Section 4(2) of the HRA 1998 provides that:
If the court is satisfied that the provision is incompatible with a Convention right, it may
make a declaration of that incompatibility.

Declarations of incompatibility have no effect on the cases in which they are

made, nor do they affect the validity or continuing operation of the legislation.
Thus, although the HRA 1998 gives the English courts the power to declare Acts of
Parliament incompatible with the ECHR, they do not have the power of, for example,
the US Supreme Court or continental constitutional courts to rule that legislation
is unconstitutional and therefore invalid. But under s.10 of the Act, a declaration of
incompatibility may lead to the provision being amended or repealed by Parliament.
In fact, a relatively low number of declarations of incompatibility have been made by

the courts since the Act was passed.
8.4.3 The Human Rights Act and parliamentary sovereignty

The provisions of the HRA 1998 on the interpretation of statutes show that when
Parliament incorporated the ECHR into UK domestic law, it did so in a way that
preserved parliamentary sovereignty. It was agreed that the courts should not be able
to strike down primary legislation passed by Parliament because that would give the
judiciary a power over legislation which under UK constitutional arrangements they
did not possess, and which would not be acceptable.
On this issue, when the Human Rights Bill was introduced to Parliament in 1997 the
government made clear its intentions:
The Government has considered very carefully whether it would be right for the Bill
to go further, and give to courts in the United Kingdom the power to set aside an Act
of Parliament which they believe is incompatible with the Convention rights…The
Government has reached the conclusion that courts should not have the power to
set aside primary legislation, past or future, on the ground of incompatibility with the
Convention. This conclusion arises from the importance which the Government attaches
to Parliamentary sovereignty. In this context, Parliamentary sovereignty means that
Parliament is competent to make any law on any matter of its choosing and no court
may question the validity of any Act that it passes. In enacting legislation, Parliament
is making decisions about important matters of public policy. The authority to make
those decisions derives from a democratic mandate. Members of Parliament in the
House of Commons possess such a mandate because they are elected, accountable and
representative. To make provision in the Bill for the courts to set aside Acts of Parliament
would confer on the judiciary a general power over the decisions of Parliament which
under our present constitutional arrangements they do not possess, and would be likely
on occasions to draw the judiciary into serious conflict with Parliament. There is no
evidence to suggest that they desire this power, nor that the public wish them to have it.
Certainly, this Government has no mandate for any such change.
(Home Office, Rights brought home: the Human Rights Bill (Cm 3782, 1997) paras.2.11–2.13,
available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/
attachment_data/file/263526/rights.pdf)
8.4.4 The approach of the courts to interpretation under the Human

Rights Act
Initially, in dealing with legislation the judiciary will seek to interpret a provision in the
normal way using one of the traditional approaches to interpretation. It is only if this
does not achieve an interpretation that is compatible with the ECHR that the courts
will adopt a different approach. The Supreme Court in S v L [2012] UKSC 30 reminded
lawyers that they should first consider the ordinary meaning of a provision using the
normal methods of interpretation, before calling on section 3. Lord Reed explained (at
para.15) that:
It sometimes seems that, whenever lawyers hear the words ’compatibility with the
Convention rights’, they reach for s.3 of the Human Rights Act. That response is however
a mistake: since the object of s.3 is to avoid, where possible, action by a public authority
which would be incompatible with the Convention rights and therefore unlawful under
s.6, it follows that the special interpretative duty imposed by s.3 arises only where the

legislation, if read and given effect according to ordinary principles, would result in a
breach of the Convention rights ... That conclusion also follows on constitutional grounds:
the courts endeavour to ascertain and give effect to the intention of Parliament (or, in this
case, the Scottish Parliament) as expressed in legislation. It is only if that intention cannot
be given effect, compatibly with the Convention rights, that the courts are authorized by
Parliament, in terms of s.3 , to read and give effect to legislation in a manner other than the
one which Parliament had intended.
Aside from the traditional approaches to interpretation, the judiciary have three other
general techniques for statutory interpretation where Convention rights are at issue.
These are known as reading ‘down’ or ‘in’ or ‘out’.
u Reading down involves limiting the meaning of words in the legislation so as to

achieve an outcome compatible with Convention rights.
u Reading in allows the judge to introduce words or meanings which create

safeguards to ensure compatibility.
u Reading out allows the court to remove or refuse to enforce provisions which
would otherwise make the legislation incompatible.
The courts have at times taken more ambitious or more cautious approaches to
statutory interpretation under section 3.
R v A (No 2) [2001] UKHL 25

One of the approaches to interpretation of English law was illustrated in the case of
R v A (No 2) [2001] UKHL 25, decided by the House of Lords in 2001. The House of Lords
in this case took a bold approach; this raises questions of whether the court was
engaging in judicial law-making that went beyond mere interpretation.
This was an appeal by a defendant to a criminal charge of rape and concerned

the question of whether certain evidence concerning the sexual behaviour of the
complainant would be admissible at trial. The defendant wanted to adduce evidence
of the complainant’s sexual behaviour in the three weeks prior to the alleged rape.
However, s.41 of the Youth Justice and Criminal Evidence Act 1999 prohibits the
admission of evidence as to the complainant’s sexual behaviour unless certain
conditions are fulfilled. The House of Lords held that an accused’s Convention right to
a fair trial might be violated if relevant evidence of the kind sought to be addressed by
the appellant was excluded. The question then arose whether s.41 could be construed
so as to prevent any violation of the defendant’s rights.
Lord Steyn’s discussion of the approach to interpretation under s.3 of the HRA 1998
indicates the extent to which the judiciary are prepared to strain the meaning of
words in order to construe provisions in legislation as compatible with the ECHR. He
said (at pp.67–68):
[T]he interpretative obligation under section 3 of the 1998 Act is a strong one. It applies
even if there is no ambiguity in the language in the sense of the language being capable
of two different meanings … Section 3 places a duty on the court to strive to find a
possible interpretation compatible with Convention rights. Under ordinary methods
of interpretation a court may depart from the language of the statute to avoid absurd
consequences: section 3 goes much further … In accordance with the will of Parliament
as reflected in section 3 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 … In my view section 3 requires the court to subordinate
the niceties of the language of section 41(3)(c), and in particular the touchstone of
coincidence, to broader considerations of relevance judged by logical and common sense
criteria of time and circumstances. After all, it is realistic to proceed on the basis that
the legislature would not, if alerted to the problem, have wished to deny the right to an
accused to put forward a full and complete defence by advancing truly probative material.
It is therefore possible under section 3 to read section 41, and in particular

section 41(3)(c) as subject to the implied provision that evidence or questioning which
is required to ensure a fair trial under article 6 of the Convention should not be treated
as inadmissible. The result of such a reading would be that sometimes logically relevant
sexual experiences between a complainant and an accused may be admitted under
section 41(3)(c). On the other hand, there will be cases where previous sexual experience
between a complainant and an accused will be irrelevant, e.g. an isolated episode distant
in time and circumstances. Where the line is to be drawn must be left to the judgment of
trial judges. On this basis a declaration of incompatibility can be avoided. If this approach
is adopted, section 41 will have achieved a major part of its objective but its excessive
reach will have been attenuated in accordance with the will of Parliament as reflected in
section 3 of the 1998 Act. That is the approach which I would adopt.
Ghaidan v Mendoza [2004] UKHL 30

The courts took a similarly broad approach to s.3 in Ghaidan v Mendoza [2004] UKHL
30, [2004] 3 All ER 41. In this case, the House of Lords was faced with the issue of
whether a surviving homosexual partner could be the spouse of a deceased tenant,
for the purposes of succeeding to a statutory tenancy under the provisions of the
Rent Act 1977. In Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27, the House
of Lords had recognised the rights of such individuals to inherit an assured tenancy by
including them within the deceased person’s family. But it declined to allow them to
inherit statutory tenancies on the grounds that they could not be considered to be the
wife or husband of the deceased as the Act required.
When the Ghaidan case was heard in the Court of Appeal, the court held that the Rent
Act, as it had been construed by the House of Lords in Fitzpatrick, was incompatible
with Article 14 of the ECHR on the grounds of its discriminatory treatment of surviving
same-sex partners. The House of Lords in Ghaidan held that it was possible to ‘read
down’ the 1977 Rent Act under the HRA 1998 s.3 so that it was compliant with the rights
in the Convention. The Court decided that the failing could be remedied by reading
the words ‘as his or her wife or husband’ in the Act as meaning ‘as if they were his or
her wife or husband’. Given that there was no objective and reasonable justification for
the discrimination, the relevant passages in the Rent Act 1977 should be construed (in
accordance with the HRA 1998) so as to give equal succession rights to a homosexual
couple living ‘as if’ they were husband and wife.
A more cautious approach

The courts have sometimes taken a more cautious approach to the use of s.3. In the
case of AS (Somalia) v Entry Clearance Officer (Addis Ababa) [2009] UKHL 32, the House
of Lords had to consider if s.85 of the Nationality Immigration and Asylum Act 2002
could be interpreted to make it compatible with Article 8 of the Convention, the right
to respect for private and family life. Lord Hope said that s.3 could not be used in this
way since the wording of the legislation was ‘unequivocal and unyielding’ and that
‘reading (the words) down would be to cross the boundary between interpretation
and amendments of the statute’ (para.19).
A similar reluctance to use s.3 to overstretch the words of the statute can be seen
in Bellinger v Bellinger [2003] UKHL 21; [2003] 2 AC 467 (discussed further below). The
House of Lords held that it was not ‘possible’ to use s.3 to interpret the Matrimonial
Causes Act 1973 to be compatible with Convention rights. To use s.3 in this way
would bring about a major change in the law (on the legal recognition of gender
reassignment), and would raise issues that were properly a matter for Parliament, not
the courts.
Indeed, this more cautious approach is seen in recent case law. For example in
Adesina v Nursing and Midwifery Council [2013] EWCA Civ 818, the Court of Appeal had to
consider whether apparently absolute time limits as set out in the relevant legislation
could be extended using s.3 of the HRA 1998. Maurice Kay LJ was willing to read down
the legislation under section 3; he stated that this must be to the minimum extent
necessary to secure compliance with the ECHR rights. The discretion to extend the
statutory time limits must only arise in exceptional circumstances, which did not

apply in the present case. In Re Z (A Child) (Surrogate Father: Parental Order) [2015] EWFC
73, the Family Court refused to read the relevant legislation down in light of s.3 so as
to enable the court to make a parental order on the application of one person rather
than the ‘two people’ which was required in the text of the legislation.
8.4.5 Declarations of incompatibility in practice

Where the courts are unable to interpret domestic legislation in a way that is
compatible with the ECHR under s.3 of the Human Rights Act 1998, the senior courts
may make a declaration that the legislation in question is not compatible with the ECHR
rights. Between the coming into force of the HRA 1998 on 2 October 2000 and the end of
July 2017, there have been 39 declarations of incompatibility. As previously mentioned, a
declaration of incompatibility neither affects the continuing operation or enforcement
of the Act it relates to, nor binds the parties to the case in which the declaration is
made. This respects the supremacy of Parliament in the making of the law.
Although there is no legal obligation on the government to take remedial action

following a declaration of incompatibility, or upon Parliament to accept any remedial
measures the government may propose (which would infringe parliamentary
supremacy), such a declaration creates pressure for action to be taken. In most cases
where there has been a declaration of incompatibility, the government has brought
forward amending legislation by way of a remedial order under s.10 of the HRA 1998 or
through ordinary legislation.
The first declaration of incompatibility was issued in 2001 in R (H) v MHRT North and
East London Region [2001] EWCA Civ 415. In that case, the Court of Appeal held that ss.72
and 73 of the Mental Health Act 1983 were incompatible with Articles 5(1) and (4) of
the ECHR because they reversed the normal burden of proof, by requiring a detained
person to show that they should not be detained, rather than the authorities being
required to show that they should be detained. The legislation was subsequently
amended by a statutory instrument, the Mental Health Act 1983 (Remedial) Order 2001
(SI 2001/3712), which came into force on 26 November 2001.
In the case of Bellinger v Bellinger [2003] UKHL 21, a post-operative male to female
transsexual appealed against a decision that she was not validly married to her
husband, by virtue of the fact that at law she was a man. The House of Lords declined
to use s.3 of the Human Rights Act to make the legislation compliant with Convention
rights, but s.11(c) of the Matrimonial Causes Act 1973 was declared incompatible
with Articles 8 and 12, under s.4 of the HRA, in so far as it made no provision for the
recognition of gender reassignment. In Goodwin v UK (Application no. 28957/95; 11 July
2002), the ECtHR had already identified the absence of any system for legal recognition
of gender change as a breach of Articles 8 and 12. This was remedied by the Gender
Recognition Act 2004, which came into force on 4 April 2005.
The leading case of A v Secretary of State for the Home Department [2004] UKHL
56 (discussed in detail in Chapter 12), concerned the detention under the Anti-
terrorism, Crime and Security Act 2001 of foreign nationals who had been certified
by the Secretary of State as suspected international terrorists, and who could not be
deported (as this would breach their rights under Article 3 ECHR). Instead, the foreign
nationals were detained without charge or trial under s.23 of the Anti-terrorism, Crime
and Security Act 2001. This was in accordance with a derogation from Article 5 ECHR,
which allowed their right to liberty under Article 5 to be suspended. The House of
Lords quashed the Derogation Order because it was not a proportionate means of
achieving the aim sought (the House of Lords was able to quash the Order because it
was secondary rather than primary legislation; you will recall that the Human Rights
Act does not give the courts the power to quash primary legislation).
Section 23 of the Anti- terrorism, Crime and Security Act 2001 was declared
incompatible with Articles 5 and 14 ECHR, as it was disproportionate and permitted
the detention of suspected international terrorists in a way that discriminated on
the ground of nationality or immigration status. The provisions of the Anti-terrorism,

Crime and Security Act 2001 were repealed by the Prevention of Terrorism Act 2005,
which put in place a new regime of control orders; it came into force on 11 March 2005.
The overall approach of the courts to declarations of incompatibility is that they

have been reluctant to make them, even though the making of a declaration does
not put the government under any obligation to change the law. The Supreme Court
has, however, recently made an interesting declaration of incompatibility in R (on the
application of Steinfeld and Keidan) v Secretary of State for International Development
(in substitution for the Home Secretary and the Education Secretary) [2018] UKSC 32,
finding that the Civil Partnerships Act 2004 was incompatible with Convention rights.
The Court found that the fact that different-sex couples could not enter into civil
partnerships breached their rights under Article 14 (non- discrimination) when read
with Article 8 (respect for private life). The Supreme Court was clear that the Court
should not be reluctant in this case to make a declaration of incompatibility. It had
been argued that the Court should refrain from doing so, as it was for Parliament, not
the courts, to change the law in this area of sensitive social policy. Lord Kerr, giving the
court’s judgment, acknowledged that the courts do not have to make a declaration
where they find an incompatibility, and that there may be circumstances where it
is not appropriate to do so, but in this case there was no need for reticence, and in
the final analysis a declaration of incompatibility does not require Parliament or the
government to take any action to change the law.
This can be contrasted with the Supreme Court’s unwillingness to make a declaration
in In the matter of an application by the Northern Ireland Human Rights Commission for
Judicial Review [2018] UKSC 27. The Northern Ireland Human Rights Commission had
challenged the compatibility of the very strict abortion law in Northern Ireland with
the ECHR. The Supreme Court held by a majority that a legal technicality meant they
could not make a declaration of incompatibility. Nonetheless, some Supreme Court
Justices did make it clear in their judgments that they considered the abortion law
to be incompatible with human rights and strongly urged the legislature to change
the law. This is an interesting case, as it shows the courts attempting to persuade the
legislature to amend the law because of its incompatibility with human rights, without
actually issuing a declaration of incompatibility under s.4.
8.4.6 Human rights: interpretation or legislation?

It appears from the decided cases that the courts’ overall approach is to strain to
achieve compatibility with the ECHR using s.3 of the HRA 1998, although it could be
argued that perhaps the judiciary have, to some extent, taken a step back from this
approach in more recent years. There is, however, a fine line between straining to
achieve compatibility and crossing the line between interpretation and legislation. It is
arguable that in reading down, in and out, the judiciary are taken very close to that line.
Although it is now commonly accepted that the judiciary are involved in a limited
law-making function in operating the doctrine of precedent and developing common
law principles, there is, perhaps, another question about the extent to which they
are involved in law-making when interpreting statutes. As Kavanagh (2004) argues,
interpretation is regarded as an activity that goes beyond the mechanical task of
discovering and then declaring legal meaning. It is a limited, but important, form of
law-making.

1. How is the purposive approach different from traditional approaches to
statutory interpretation?
2. In what ways is the continental approach to the interpretation of legislation

different from that in England?
3. What is the effect of s.3 of the HRA 1998 on the approach of English judges to the
interpretation of English law?
4. What techniques can judges use in meeting the requirements to interpret

domestic legislation in a way that is compatible with the ECHR?
5. What is the effect of a declaration of incompatibility under s.4 of the HRA 1998
on the immediate case and on the legislation in question?
6. Is the UK Government required to respond to declarations of incompatibility

under s.4 of the HRA 1998?
7. To what extent did the decision in Ghaidan make new law?
8. Explain in your own words a case in which the courts have taken a more
cautious approach to the use of s.3 HRA 1998.

‘The Human Rights Act 1998 has fundamentally changed the rules of statutory
interpretation.’
Do you agree with this statement?


The question requires you to address the following:
u What are the ‘rules’ of statutory interpretation?
u How does the Human Rights Act 1998 affect these approaches to the
interpretation of statutes?
u Does this constitute a fundamental change to the rules/approaches?
u Note that the focus of the question is on interpretation under the HRA 1998,
so any discussion of the literal, golden and mischief rules should be brief and
relevant to the question.
The following are some of the points you could include:
1. What are the ‘rules’ of statutory interpretation? The fundamental purpose of
interpretation is to give effect to Parliament’s intention. There are no strict rules
that judges must follow. Historically, the judiciary have adopted a variety of
approaches. Briefly describe these, with examples. Discuss the development of
the purposive approach with examples. This section need only be brief, as the
main focus of the question is on statutory interpretation under the HRA 1998.
2. How does the Human Rights Act affect interpretation? Describe the operation
of s.3 and s.4 of the HRA 1998, and the approach taken by the judiciary to s.3 and
s.4, using examples:
u Straining interpretation (e.g. R v A). Reading down (e.g. Ghaidan v Mendoza).
u More cautious approaches to s.3 (e.g. Bellinger v Bellinger, AS (Somalia) v Entry

Clearance Officer (Addis Ababa).
u Examples of declarations of incompatibility (e.g. A v Secretary of State for the

Home Department, R (on the application of Steinfeld and Keidan) v Secretary of
State for International Development).
3. Is this a fundamental change?
u Judges continue to use other approaches to interpretation. Other approaches

to interpretation are to be used before s.3 (Lord Reed in S v L).
u Judges also continue to use traditional aids in seeking to give effect to

Parliament’s intention. The HRA does not radically change this, but there
are ways in which the ECHR changes the approach and the balance between
judiciary and legislature.
u Straining to avoid a declaration of incompatibility means judges going further

in reading in and out words in statutory provisions. Does this occasionally
mean that they are, in fact, doing violence to the intention of Parliament?
u Although this doesn’t produce a fundamental change to the rules of statutory

interpretation, the emphasis on finding a way of reading provisions as
compatible with the ECHR has led to a difference in approach and a subtle
shift in the relations between judiciary, legislature and executive.

9 Legal skills: finding and citing sources of law
Contents
9.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
9.2 Starting to find legal resources . . . . . . . . . . . . . . . . . . . . . . 97
9.3 Law reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
9.4 Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

Learning outcomes
u explain in overview how to find case law and statutes
u explain the function of law reports in finding case law
u describe how to cite case law and statutes correctly.
Core text
¢ Holland and Webb, Chapter 2 ‘Finding the law’.
Essential reading
¢ Askey and McLeod, Chapter 6 ‘Finding and citing the sources of law’ (available in
Further reading
¢ Oxford Lib Guides ‘United Kingdom law: case citation’, at http://ox.libguides.
com/c.php?g=422832&p=2887383
¢ Cardiff University ‘Citing the law: referencing using OSCOLA’, at https://xerte.

cardiff.ac.uk/play_6716
¢ Inner Temple Library, ‘Guide to neutral citations’, at www.innertemplelibrary.

org.uk/research-and-training/guide-to-neutral-citations/
¢ Incorporated Council of Law Reporting ‘What’s the difference between a

“law report” and a “transcript”?’, at www.iclr.co.uk/blog/legal-profession/
whats-the-difference-between-a-law-report-and-a-transcript/

Legal system and method 9 Legal skills: finding and citing sources of law page 97
9.1 Introduction
In the preceding chapters, you have seen how the judges apply legal methods through
legal reasoning in case law and through interpreting statutes. In this chapter and the
next, you will start to develop some of the skills you will need yourself to find, cite
and read legal sources. This chapter will not teach you substantive law; instead it is a
practical chapter which you will come back to again and again as you need to find and
cite sources of law.
In Chapter 2 you learned about the most important sources of law:
u Acts of Parliament or statutes
u Case law or common law
u European Convention on Human Rights
As a law student, you will often have to find, read and cite these sources of law. You will
also use other sources, such as textbooks and journal articles. This chapter gives you
a brief overview of law reports – in which case law is reported – and statutes, to help
you to find and use these sources of law. There then follows an explanation of how to
cite case law and statutes in your own writing. These are skills that you will need in
order to find legal sources as you progress through your studies. Don’t worry if you
can’t follow all of this to start with – it is quite technical! But you can come back to this
chapter again and again to help you in a practical way to locate and cite sources of law.
At the end of this chapter, there is a short self-assessment exercise to give you practice
in understanding case citations.
9.2 Starting to find legal resources

You will access many legal resources through the Online Library. You can read the
Online Library Guidance on the VLE (at https://laws.elearning.london.ac.uk/mod/book/
view.php?id=10234), which contains extensive support to help you to understand how
to use the library to access legal resources.
There are also some reliable free resources on the internet that you can use to find
cases and statutes.
u The British and Irish Legal Information Institute (BAILII), at www.bailii.org
This provides access to primary legal materials on one internet site without charge.
Around 200,000 documents are available to search, including case law, legislation,
law reports and other legal material, alongside links to international law resources
and archives. You can search BAILII by database, legislation, case name or case law.
Recent decisions, additions and new cases of interest are highlighted, as well as
leading case law organised by subject.
u The free legislation database at www.legislation.gov.uk
This contains a large amount of primary and secondary legislation, but be aware
that it is not always promptly updated to take account of legislative amendments.
9.3 Law reports

The operation of judicial precedent (discussed briefly in Chapter 2 and in more detail
in Chapters 5 and 6) is reliant on a reliable and extensive reporting service to provide
access to previous judicial decisions. It is not just law students who need to read law
reports! Barristers in court, for example, read law reports as part of their research, and
have a duty to provide to the court all relevant legal authority, even if it is not helpful
to their client’s case.
As well as law reports, you may sometimes read a transcript of a law report. A
transcript is simply a written and verbatim record of the court’s judgment. Law reports
contain all of the information you will find in a transcript and will also provide a

considerable amount of extra information. A law report of a case is generally produced

when the case makes a change to the law and is considered to be reportable.
9.3.1 History of law reporting

Historically, there have been three periods of law reporting:
1. The Year Books These were the first available law reports, compiled during the 13th
century. Year Book reports were not intended for use by the judges as precedents,
but were probably simply notes compiled by students and junior advocates for use
by advocates.
2. The Private Reports The compilation of Year Books ceased in about 1535, after
which private sets of reports were produced, printed and published under the
name of the law reporter (e.g. Coke’s Reports (Co Rep), which are so well known
that they are sometimes cited merely as ‘Reports’ (Rep)). These were published
between 1600 and 1865.
The private reports are cited by the name of the reporter (usually abbreviated)
and a volume and page number. The date of the report is not part of the reference
but is usually inserted in ordinary round (not square) brackets. Ashford v Thornton
(1818) 1 B&Ald 405 (i.e. volume 1 of Barnewall and Alderson’s Reports at page 405);
Pillans v Van Mierop (1765) 3 Burr 1664 (i.e. the third volume of Burrow’s Reports at
page 1664).
In practice, most law libraries have the reports of the private reporters in the
reprinted edition known as ‘the English Reports’ (ER or Eng Rep). These are
published in 176 volumes and contain all the available reports of the private
reporters. A reference chart is published with the English Reports, showing in
which volume the reports of any individual reporter are contained.
3. The Law Reports This is the current system of published law reports, which began
towards the end of the 19th century. When private reporting ended in 1865, a
Council was established to publish reports of decisions of senior courts. The
Council was under professional control, with a representative from the Bar and
the Law Society. In 1870, it became the Incorporated Council of Law Reporting for
England and Wales (ICLR). The Council produces the Law Reports (also referred to
as ‘the official Law Reports’), the Weekly Law Reports (WLR), the Industrial Cases
Reports (IC) and the Law Reports Statutes.
The Weekly Law Reports include a report of every decision which will appear in
the Law Reports and others which are not intended to be included later in the Law
Reports. The cases are reported in full. Volume 1 of the Weekly Law Reports contains
cases not intended to be included in the Law Reports. Volumes 2 and 3 of the Weekly
Law Reports contain cases which will eventually be included in the Law Reports.
9.3.2 The Law Reports series

The Incorporated Council of Law Reporting publishes the official Law Reports,
including Appeal Cases (AC), Queen’s Bench (QB), Family (Fam) and Chancery (Ch).
There is a hierarchy of law reports, and the official Law Reports are considered the
most authoritative or ‘best’ reports.
In the superior courts, there is a rule that a case reported in the official Law Reports
should be cited from that source. Practice Direction (Citation of Authorities) [2012] 1 WLR
780 states (at para.6) that:
Where a judgment is reported in the official Law Reports (AC, QB, Ch, Fam) published by
the Incorporated Council of Law Reporting for England and Wales, that report must be
cited. These are the most authoritative reports; they contain a summary of the argument.
Other series of reports and official transcripts of judgment may only be used when a case
is not reported in the official Law Reports.

Law report abbreviations

The abbreviations for law reports are as follows:
AC Appeal Cases
Ch Law Reports, Chancery Division
QB Law Reports, Queen’s Bench Division
KB Law Reports, King’s Bench Division
Fam Law Reports, Family Division
P Law Reports, Probate Division
Other commercial series
All ER All England Reports
Cr App R Criminal Appeal Reports
Cr App R (S) Criminal Appeal Reports Sentencing
LLoyd’s LR Lloyd’s Law Reports
WLR Weekly Law Reports
EHRR European Human Rights Reports
A full list of abbreviations can be found at www.legalabbrevs.cardiff.ac.uk
Note a common cause of confusion for law students: the Appeal Cases set of law reports
does not contain reports of decisions of the Court of Appeal, despite its name. The
cases reported in the Appeals Cases law reports are decisions of the Supreme Court (or
before this, decisions of the House of Lords), as well as decisions of the Privy Council and,
occasionally, decisions of the Court of Justice of the European Union. Court of Appeal
decisions are reported in either the Queen’s Bench Division, Family Division or Chancery
Division report series, depending on the subject matter of the case in question.
9.3.3 Citation of legal cases

Citation is the accepted way of referring to the ‘primary’ sources of law, cases,
legislation and also books and journal articles. It follows a standard format which
makes it possible for anyone to find the cited item. This is essential information for
being able to locate relevant legal material and for being able accurately to refer to
legal cases or cite them in writing or in legal argument.
The name of a case is usually made up of the names of the parties to the case. The
party who is initiating the current stage of the proceedings will usually be placed first.
Some types of case have special formats (see below). The convention is to italicise the
name of the case when citing it (or to underline if writing by hand). The name of the
case should then be followed by the case citation, which may be a neutral citation,
if there is one, or a law report citation. Neutral citations and law report citations are
different ways of citing a case; both are explained later in this chapter.
Square and round brackets in case citation

You will notice that sometimes a law report case citation contains round brackets and
sometimes square brackets.
Square brackets are used where one needs the year of the case in order to be able to
identify the relevant volume. Round brackets are used where the enclosed date is just
a courtesy, because one could identify the relevant book of law reports by its volume
number alone. This is because some series of law reports number each year’s reports
from number 1, whereas some continue numbering from where they stopped the
previous year.
For example, to find Attorney-General v Associated Newspapers Ltd [1994] 1 All ER 556, you
need to go to the 1994 volumes of the All England Law Reports, choose volume 1, and
turn to page 556. By contrast, to find Montriou v Jeffreys (1825) 2 C&P 113, you would not
need to know the year of judgment, you would just need to go to the second volume
of the Carrington & Payne reports, and turn to page 113. (This explanation is from
Slapper (2016), p.124.)

Law report citation examples
Civil cases
Davis v Johnson [1979] 2 WLR 553 (pronounced Davis ‘and’ or ‘against’ Johnson, not Davis
‘v’ Johnson or Davis ‘versus’ Johnson).
‘Davis’ is the name of the person bringing the claim (the claimant). ‘Johnson’ is the
name of the person defending the claim (the defendant). [1979] is the year in which
the case was printed in the law reports, and ‘2’ is the volume number of the reports in
which the case appears. ‘WLR’ stands for Weekly Law Reports, which is the law report
series containing all formally reported legal cases, and ‘553’ is the page number of
volume 2 of the Weekly Law Reports in 1979 where you will find the reported case of
Davis v Johnson.
Davis v Johnson [1979] 2 WLR 553
Name of Name of Volume First page

claimant defendant number of case
(plaintiff) report
Date
reported
Weekly Law
Reports
Figure 9.1 Criminal cases

Criminal case citations usually take one of the following three forms:
u R v Smith [1959] 2 QB 35 (R stands for Regina or Rex) (i.e. ‘the Crown and/against Smith’)
u AG v Punch [2002] UKHL 50, [2003] 1 All ER 289, [2003] 1 AC 1046, [2003] 2 WLR 49
u (‘Attorney General and/against Punch’)
u DPP v Camplin [1978] AC 705, [1978] UKHL 2 (‘Director of Public Prosecutions and/
against Camplin’)
Other formulations
Private family case: P v BW [2004] Fam 22
Public family case: Re B (Refusal to Grant Interim Care Order) [2012] EWCA Civ 1275
Judicial review: Before 2001: R v Lord Chancellor, ex p Witham [1998] QB 575 (QB);
After 2001: R (Roberts) v Parole Board [2004] EWCA Civ 1031, [2005] QB 41
In re or Re (where there is only one party): Re B (Adult: Refusal of Medical Treatment)

[2002] 2 All ER 449
Neutral citations
Since 2001, ‘neutral citations’ have been used. A neutral citation is the court-assigned
reference number for each judgment; every case will have its own unique number.
Unlike a law report citation, a neutral citation does not refer to any particular report
of a case, but to the judgment itself. Neutral citations were introduced by a Practice
Direction on 11 January 2001 (Practice Direction (Judgments: Form and Citation) [2001]
1 WLR 194). They were introduced to make it easier to find judgments online from
electronic sources, given the increasing availability of both reported and unreported
cases electronically.
Neutral citations give each case an individual number so that it can be identified. The
neutral citations comprise the year, the court abbreviation and then the case number.
These look like normal law report citations but they are not. You will find you start to
recognise quite quickly which citations are law report citations and which are neutral
citations.

R v James [2006] EWCA Crim 14
R v James
2006 EWCA Crim 14
Stands for: Case number

England and Wales assigned by court
Criminal Division of the
Year the case Court of Appeal Court of Appeal.
was heard Civil decisions
are marked ‘Civ’
Figure 9.2 Neutral citation examples

The basic formulation is to give the year of the case, the court in which it was decided
and the case number. EW stands for England and Wales, UK for United Kingdom. It
is the Court of England and Wales because the other jurisdictions – Scotland and
Northern Ireland – have their own Courts of Appeal. The Supreme Court, on the other
hand, is the Supreme Court for the whole of the United Kingdom.
u [2005] EWCA Civ 101 (this is the 101st case of 2005 in the Court of Appeal Civil
Division).
u [2006] EWHC 101 (Admin) (101st case of 2006 in the High Court Administrative
Division).
u [2003] UKHL 5 (fifth case of 2003 in the House of Lords (now the Supreme Court)).
u [2010] UKSC 48 (48th case of 2010 in the UK Supreme Court).
House of Lords case: Matthews v Ministry of Justice [2003] UKHL 4.
UK Supreme Court case: R v Maxwell [2010] UKSC 48.
Privy Council case: Kelly and others v Fraser [2012] UKPC 25.
High Court case: Salekipour v Parmar [2016] EWHC 1466 (QB).
Don’t worry if some of these courts are not yet familiar to you. The different courts in
the English legal system are discussed in Chapter 11 of this module guide.
9.4 Statutes
You will find the text of statutes through databases in the Online Library or through
the website at www.legislation.gov.uk
To cite an Act of Parliament, use its short title and date. For example, Human Rights
Act 1998. To refer to a particular section or sections in the Act, use s or ss (section or
sections), Pt (Part) or Sch and para (Schedule and paragraph within a schedule).
Human Rights Act 1998, s.19(1)(b)
Title of Act Paragraph within

including year the subsection
Abbreviation Subsection
for section
Section number

It is very important to cite statutes precisely when you are referencing legal authority.
When, for example, answering legal problem questions, you must cite the specific
sections of the statute to support your point.
For example, suppose you are answering a question about section 3 of the Dealing in
Cultural Objects (Offences) Act 2003. This is the text of section 3 of the Act:
3 Meaning of ‘deals in’
(1) A person deals in an object if (and only if) he—
(a) acquires, disposes of, imports or exports it,
(b) agrees with another to do an act mentioned in paragraph (a), or
(c) makes arrangements under which another person does such an act or under which
another person agrees with a third person to do such an act.
(2) ‘Acquires’ means buys, hires, borrows or accepts.
(3) ‘Disposes of’ means sells, lets on hire, lends or gives.
(4) In relation to agreeing or arranging to do an act, it is immaterial whether the act is

agreed or arranged to take place in the United Kingdom or elsewhere.
(5) This section has effect for the purposes of section 1.
If you want to discuss the situation in which someone ‘acquires, disposes of, imports
or exports’ an object, you will need to refer to s.3(1)(a), not just to s.3 or even s.3(1). You
must cite statutory authority as precisely as possible.
1. What two reputable free resources can you use to find case law and statutes?
2. What are the official law reports?
3. What does the abbreviation AC stand for in the official law reports?
4. What does the abbreviation All ER stand for?
5. What is the difference between round and square brackets in case law citations?
6. Explain in your own words what a neutral citation is.
Self-assessment exercise
Here we have a short self-assessment exercise to give you practice in understanding
case citations. Explain the following case citations, and state whether each is a law
report citation or a neutral citation:
1. [1992] 3 WLR 806
2. [1993] Fam 123
3. [2014] EWCA Civ 871
4. [1992] 4 All ER 671
5. [1889] AC 375
6. [2016] UKPC 34
7. [1895] 1 QB 918
8. [2018] EWCA Crim 2954
9. [2018] EWHC 3475 (Admin)
10. [1942] 1 Ch 425
11. [2019] UKSC 41
12. [2012] EWHC 3302 (Ch)

10 Legal skills: reading cases and statutes
Contents
10.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
10.2 Why read cases and statutes? . . . . . . . . . . . . . . . . . . . . . . 105
10.3 Reading cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
10.4 Reading statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106

Learning outcomes
u explain how to read a law report and distinguish between its different parts
u explain how to read a statute and to identify its component parts.
Core text
¢ Holland and Webb, Chapter 3 ‘Reading the law’.
Essential reading
¢ Askey and McLeod, Chapter 8 ‘Reading law reports and statutes’ (available in
¢ ‘Letters to a law student: reading cases and statutes’, at http://lawbore.net/

articles/letterstoalawstudent.pdf
Further reading
¢ Slorach et al., Chapter 7 ‘Reading and understanding law’.
¢ Undergraduate Laws Blog ‘Using statute books for studying and

exams’, 30 November 2017, at https://lawsblog.london.ac.uk/2017/11/30/
using-statute-books-for-studying-and-exams/
¢ Undergraduate Laws Blog ‘How to learn case law for your exams’,
15 February 2018, at https://lawsblog.london.ac.uk/2018/02/15/
how-to-learn-case-law-for-your-exams/

Legal system and method 10 Legal skills: reading cases and statutes page 105
10.1 Introduction
In the preceding chapters, you have seen how the judges apply legal methods through
legal reasoning in case law and through interpreting statutes. This chapter shows you
how to apply legal method yourself by learning how to read and understand case
law and statutes. This will be essential for your legal studies, during which you will be
reading a large number of these primary legal sources.
This chapter is slightly different from other chapters in this module guide. There are
two places where you are referred to a worked example of reading a case report and
a statute in the textbook. These are essential parts of the work for this chapter, and
without carrying out these exercises you will not have a full understanding of how to
read cases and statutes. You are also referred to some practical exercises. These are
also an essential part of studying this chapter.
10.2 Why read cases and statutes?

As a common law legal system, much of English law can be find in the decisions of the
courts, as reported in the law reports. Notwithstanding the importance of case law, in
modern times statutes have come to represent a greater volume of the law. Therefore,
law students need to be able to read both sources of law.
Students are often tempted to read only summaries of case law or explanations
of statute in textbooks or on the internet. Although these techniques can give an
overview of the law, it is no substitute for reading the case report or the statute itself.
Similarly, you should not rely solely on reading the headnote of a law report. The
headnote is the short section at the start of the case that contains the case reporter’s
summary of the court’s decision. As a summary, this is not the same as reading the full
and detailed reasoning in the judgment.
By reading the whole judgment in cases, you can see how judges carry out legal
reasoning, distilling legal principles and applying them to the facts of the case. This
will help you to develop your own skills of legal reasoning and legal analysis. Reading
case law in detail also helps you to really see how the law develops incrementally
from case to case, and to see how different cases fit together. This will deepen your
understanding of the law, and will be especially important in case law-heavy subjects.
To really understand the law, you must read statutes and case law themselves.
Summaries and commentaries on the primary legal sources are never going to be
a replacement for this. The ability to read statutes and case law will be assumed in
substantive law subjects, and so must be developed early on in your studies.
10.3 Reading cases

Reading cases and statutes is not the same as other reading you may do in your day-to-
day life. You will need to read a case carefully and in detail, and you will need to read it
more than once to fully understand it. You will probably find it difficult at first to read
and understand case law, but this is a skill that you will develop with practice.
The first time you read a case, it will be to get an overview of what the case is about
and how the court reached its decision. You will not understand all the details on your
first reading. You will see that some judgments are very lengthy. You do not always
have to read all of the judgment; you can be selective and pick out the parts of the
judgment that are most relevant to what you are trying to find out from the case.
Modern law reports contain some standard information, usually:
u the name of the case
u the court in which it was heard
u the names of the judges

u the hearing dates
u the headnote
u a list of cases referred to
u the names of counsel in the case
u the judgments.
Note that if you are reading the official transcript of a case, rather than a law report,
then this will not contain all of these features.
The judgments are the most important part of the case. Each judge is entitled to give
their own judgment, so there may be more than one judgment in a case. Judgments
may either support or dissent from decisions of other judges in the case. They may
simply be very brief concurring judgments that just state ‘I agree’. In modern cases,
judgments are often broken up by the use of headings, which can be very useful when
reading them to understand the structure of the argument.
10.3.1 Writing a case note

When reading cases, you should write a case note to help you to remember the key
points: the material facts, the legal principles, the ratio of the case and important
points from the judgments. These should be reasonably brief, so that you can
understand and remember the most significant points.
These are some of the points to think about including in your case note:
u case name and citation
u court and judges
u parties
u a summary of the material facts
u questions of law/issues
u decision
u a summary of the reasons for the decision
u the ratio decidendi.
Now go to pp.130–42 in Askey and McLeod (2014). Read the law report excerpt with
annotated commentary. This will help you to understand the different parts of a law
report and how to read a judgment.
10.4 Reading statutes

As with cases, reading statutes takes practice and is a skill you will develop through
practice. You will need to read a statute many times to understand the details of it and
how the different parts fit together. Once you are familiar with the basic structure of a
statute, this will help you to read any statute you may need to study.
Modern statutes all contain similar components that will help you to navigate your
way around them:
u short title: this is the title that is usually cited (e.g. Offensive Weapons Act 2019)
u citation: each statute has a chapter number
u long title: describes the general scope of the Act
u date of royal assent: each statute states the date when it received royal assent
u marginal notes: most statutes contain these to help you find the section you want.

All statutes are divided into sections, which will often themselves be divided into
subsections, or even paragraphs. You will see these cited in this way:
u sections: section 1
u subsections: section 1(1)
u paragraphs: section 1(1)(a).
Many statutes will also have schedules at the end of the main text. These are parts
of the statute that provide more detail regarding sections, for example, by defining
phrases or expanding on them. Schedules will often be quite detailed and technical.
They are, however, part of the statute itself and do not have an inferior status.
Sections will often cross-refer to other sections in the statute (and to other statutes),
so, as you read the statute, you will need to think about how different sections relate
to each other. You will find you are not reading a statute like a novel, from beginning to
end, but that you are navigating its internal structure. Look out for definition sections;
often statutes will give specific meanings to everyday words. You will also need to
pay attention to connectors – these are words that connect the different sections and
subsections of a statute. They indicate whether the sections and subsections are to be
applied together, whether they are alternatives and when they apply. Connectors are
words like ‘if’, ‘and’, ‘but’, ‘or’.
10.4.1 Using a statute book

For law modules that have a statute book which you can take into an examination,
make sure you are familiar with the necessary statutes before the examination. During
the examination, you should use the statute book so that the exact text of the law is in
front of you. By using the statute book, you can easily cite the necessary precise legal
authority which is essential to support your answer.
By the time of the examination, you should already be very familiar with the statutes,
and looking at the statute book should just remind you of specific points. During the
examination is not the time to be reading the statutes for the first time.
In relation to the Legal system and method examination, you will know well in
advance what the set statute is that you will be required to answer questions on. Make
sure you are very familiar with this statute before the examination, and that you have
applied the techniques discussed in this chapter so that you fully understand it. You
will also find it useful to revisit the section in Chapter 9 on citing statutes correctly.
Now go to pp.144–52 in Askey and McLeod (2014) . Read the excerpt from the statute with
annotated commentary. This will help you to understand the standard parts of a statute
and how the structure of a statute can be organised.

Self-assessment exercises
Rather than a set of self-assessment questions, here we have two self-assessment
exercises to give you practice in reading and understanding a short law report and a
short statute.
Exercise 1
Part A
For this exercise, please read the report of Re S [1992] 3 WLR 806 (available in
Westlaw via the Online Library). Then answer the following questions.
1. Which court was the case heard in?
2. What date was the case heard on?
3. What was the name of the judge who heard the case?
4. What two cases are cited in the judgment?
5. Who brought the action in court?
6. Why was Mrs S refusing to undergo a caesarean section?
7. Whose life was in danger?
8. Write a short paragraph summarising the main facts of the case. Try to be as
succinct as possible in identifying the most important facts.
Part B
Now try to formulate the ratio of Re S [1992] 3 WLR 806. To help you, consider this
formulation of the ratio:
Where a 30-year-old woman has been in labour for more than two days with her third
pregnancy and the labour is obstructed putting both her own life and that of the
foetus at risk an objection on religious grounds by the mother will not prevent the
court granting a declaration that a caesarean section be performed.
Decide which elements of the ratio should be kept in the formulation and which
elements should be replaced with another term, using the table below. You do not
have to use all the replacement terms – it is up to you to decide which language
best explains the ratio.
Replacement terms you could use:
An adult woman Her own life is in danger

An incompetent adult Whose protests are based on fanciful beliefs
A woman Opposes treatment for irrational reasons
In labour Order that treatment be carried out
Suffering complications in childbirth The operation be performed
Threatening the life of an unborn child Delete
ELEMENT KEEP REPLACE WITH

Where a 30-year-old woman
Has been in labour for more than two
days with her third pregnancy
And the labour is obstructed
Putting both her own life
And that of the foetus at risk
An objection on religious grounds by
the mother
Will not prevent the court granting a
declaration that a caesarean section be
performed.
Now rewrite the ratio of the case using a combination of your own words and the
terms you have selected above.

Exercise 2
For this exercise, please read the following statute: Wild Animals in Circuses
Act 2019. The statute is reproduced at the end of this chapter. Then answer the
following questions.
1. What is the full citation of the Act?
2. What is the long title of the Act?
3. When did it receive royal assent?
4. What is the subject of section 1 of the Act?
5. What is the definitions section of the Act? Make sure you cite it correctly.
6. What date does the Act come into force? Which section is this found in?
7. What is the penalty for a circus operator for committing an offence? What
section is this found in?
8. What are the conditions that must be satisfied for an officer of a body corporate
to be guilty of an offence under s.1(4)?


www.nationalarchives.gov.uk/doc/open-government-licence/version/3/
Contains public sector information licensed under the Open Government Licence v3.0.

Notes

Part C: Legal system
11 Courts in the English legal system
Contents
11.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
11.2 Some preliminary distinctions . . . . . . . . . . . . . . . . . . . . . 115
11.3 The role of the courts . . . . . . . . . . . . . . . . . . . . . . . . . . 115
11.4 The hierarchy of the courts . . . . . . . . . . . . . . . . . . . . . . . 116
11.5 Case study: the UK Supreme Court . . . . . . . . . . . . . . . . . . . 121
11.6 Tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
11.7 European and international courts . . . . . . . . . . . . . . . . . . . 124
11.8 Future directions of the court system . . . . . . . . . . . . . . . . . . 125

Learning outcomes
u describe the hierarchy of the courts
u understand in broad terms the composition and jurisdiction of the courts
u understand the role of tribunals
u understand the relationship between English courts and European and
international courts
u analyse the courts in a comparative context.
Core text
¢ Holland and Webb, Chapter 1 ‘Understanding the law’, pp.13–23.
Essential reading
¢ Department for Constitutional Affairs ‘Constitutional reform: a Supreme
Court for the United Kingdom, Consultation Paper 11/03, July 2003, at http://
webarchive.nationalarchives.gov.uk/+/http:/www.dca.gov.uk/consult/
supremecourt/supreme.pdf
¢ Supreme Court website ‘About the Supreme Court’, at www.supremecourt.uk/

about/index.html and factsheet at www.supremecourt.uk/docs/educational-
resource.pdf
¢ Lord Reed ‘The Supreme Court ten years on’, Bentham Association Lecture
2019, University College London, 6 March 2019, at www.supremecourt.uk/docs/
speech-190306.pdf
¢ Supreme Court ‘The Supreme Court of the United States of America (SCOTUS) and
the Supreme Court of the United Kingdom (UKSC): a comparative learning tool’,
at www.supremecourt.uk/docs/scotus-and-uksc-comparative-learning-tool.pdf
¢ UK Supreme Court blog ‘USSC v UKSC’, 29 June 2012, at http://ukscblog.com/

ussc-v-uksc/
Further reading
¢ Slorach et al., Chapter 3 ‘The court system of England & Wales’.
¢ Ministry of Justice ‘The strengths and skills of the judiciary in the magistrates’
courts’, Summary, 13 December 2013, at pp.1–6, at www.bl.uk/collection-items/
strengths-and-skills-of-the-judiciary-in-the-magistrates-courts-2013-revision
¢ Lady Hale ‘Should the law lords have left the House of Lords?’, Michael Ryle
Lecture 2018, 14 November 2018, at www.supremecourt.uk/docs/speech-181114.
pdf
¢ Stolowy, N. and M. Brochier ‘France’s commercial courts: administration of

justice by ordinary citizens’, Journal of Business Law 2017, pp.1–26, in particular
pp.8–16 (available in the Online Library).
¢ Centre for Justice Innovation ‘Problem-solving courts: an

evidence review’ at https://justiceinnovation.org/publications/
problem-solving-courts-evidence-review

Legal system and method 11 Courts in the English legal system page 115
11.1 Introduction
This chapter introduces you to the names and work of the main courts in the justice
system. Although some of the terms used at this stage will be unfamiliar, as you
progress through your reading, and as you begin to read some cases, the terminology
will become more familiar. This chapter covers the hierarchy of the courts, and gives
an overview of the courts that make up this hierarchy. There is then a more detailed
case study of the UK Supreme Court. The chapter ends with an explanation of tribunals,
European and international courts, and possible future directions for the courts.
11.2 Some preliminary distinctions
11.2.1 Civil and criminal courts

Civil courts exist in order to resolve disputes between private citizens or between a
citizen and the state. These disputes may involve, for example, breach of contract,
liability for injury in the law of tort, property rights, family disputes or the wrongful
exercise of power by a public authority. The person bringing the claim is the ‘claimant’
and the person defending the claim is the ‘defendant’. In older cases, you will see the
person bringing the claim referred to as the ‘plaintiff’. If the defendant is found liable,
the court has the power to order the defendant to pay monetary compensation to the
claimant or to order some other remedy.
Criminal courts exist in order to hear and determine cases in which people are accused
of breaking the criminal law. The case will be brought by the ‘prosecution’ against an
‘accused’ or ‘defendant’. If the defendant is found guilty, the criminal court has the
power to inflict punishment in the form of a fine or imprisonment. The vast majority of
prosecutions are brought by the Crown Prosecution Service or other state agencies.
11.2.2 ‘First instance’ and ‘appeal’ courts

In both civil and criminal cases, once a decision has been given by the court, it may
be possible to appeal against the decision to a higher court. Thus, there is a further
distinction between ‘first instance’ or trial courts and ‘appellate courts’, which hear
appeals.
11.2.3 Unanimous, concurring and dissenting judgments

In some of the courts in the hierarchy, judges sit in panels rather than alone (for
example, the Supreme Court and the Court of Appeal). In these cases, judges normally
sit in panels of three, five, seven or nine because in the English common law tradition
it is permissible and legitimate for a judge to disagree with others on a judicial panel.
In such a case the judge will deliver a ‘dissenting judgment’ and the case will be
decided by the majority. Where all of the judges agree, the decision will be unanimous.
Even when all of the judges agree, it is quite common for each of the judges hearing a
case to write their own decision. Although the judges agree, they may have a slightly
different interpretation of some of the issues in the case or wish to express their
view slightly differently from that of the other judges. Where judges write a decision
agreeing with the other members of the panel it is called a ‘concurring’ judgment.
11.3 The role of the courts

One of the primary roles of the courts is, of course, the resolution of legal disputes.
Courts are central to the legal system in the sense that they are the bodies which have
the power to determine legal disputes in a binding way. However, it should be noted
that it is far from the case that all legal disputes make it as far as the court system. As
stated in Hazel Genn’s seminal study on legal disputes, Paths to Justice:

The court and other legal proceedings play a very minor role in the resolution of
justiciable problems afflicting ordinary members of the public as private individuals.
(Genn, H. Paths to justice: what people do and think about going to law. (Oxford: Hart
Publishing, 1999) [ISBN 9781841130392])
Disputes may be dealt with by informal negotiations between the parties or their
lawyers, internal complaint mechanisms, mediation, tribunals and other ways that
do not involve the court system. Sometimes when faced with a legal problem, people
simply decide to do nothing at all, and to put up with the situation.
So courts are not necessarily central to the resolution of legal disputes for most
people. What other functions does the court system have? In the English common
law system, courts also have the role of setting precedents and developing the law.
As you learned in Chapter 2, the formation of common law through the doctrine of
judicial precedent is one of the main sources of English law. This is especially so for the
Supreme Court, which, as the most senior court, makes rules that must be followed
by all courts below it in the court hierarchy. Do courts and judges therefore have a
role in going beyond deciding individual disputes and interpreting the law, to actually
making the law? To say that this is a role of the courts is to go against the theory of the
separation of powers. This has been discussed in Chapter 4.
11.4 The hierarchy of the courts

The courts in the English legal system, shown in the diagram below, are in a
hierarchical relationship. Courts are organised on the basis of seniority. The more
senior the court in the hierarchy, the greater will be the authority of the decisions of
the court. The decisions of the Supreme Court (formerly the House of Lords) are the
most important and authoritative decisions of all the courts. Court of Appeal and High
Court decisions are also authoritative, but less so. This is balanced by the fact that far
more cases go to the Court of Appeal than to the Supreme Court.
UK Supreme Court
Appeal only, on points of law.
Employment Appeal Tribunal
Appeals from the Employment
Tribunals.
Court of Appeal
Appeal only, on points of law to either the Employment Tribunal (England
Criminal or Civil Divisions. & Wales; Scotland)
Claims about matters to do
with employment.
High Court
Chancery, Queen’s Bench and Family Divisions.
Upper Tribunal
All three divisions hear appeals from other courts,
Appeals from the First-tier Tribunal.
as well as ‘first instance’ cases.
Crown Court
Jury trial for all indictable and some either-way criminal First-tier Tribunal
offences. Appeals against conviction and sentence from Appeals from executive
the Magistrates’ Court. agency decisions.
There are a number of other

tribunals outside of this structure
Magistrates’ Court (for example, School Exclusion
County Court Family Court
Trial for most Panels) – their supporting
Trial for most Trial for most
criminal offences. llegislation explains their individual
civil cases. family cases.
Some civil matters. appeal routes.
Figure 11.1 The court structure (adapted from: https://www.judiciary.uk/wp-

content/uploads/2020/08/courts-structure-0715.pdf)

The courts and tribunals at the lower end of the hierarchy deal with the vast mass
of civil disputes and criminal cases (what are known as ‘inferior’ or ‘subordinate’
courts and tribunals); the courts at the top of the hierarchy hear a small number of
the most important cases on appeal in order to ensure that the decision of the trial
court was correct and to clarify points of law (‘superior’ courts). The judges who sit in
the superior courts are the most senior and distinguished members of the judiciary.
Superior courts have unlimited jurisdiction, so can hear cases of any value or legal
complexity. Inferior courts have a limited jurisdiction. The Court of Appeal, High Court
and Crown Courts are now known as the ‘senior’ courts.
The court structure in England can be compared with that of France, a civil law
jurisdiction. Some of the notable differences between the French court system and the
English court system are that:
u France has a constitutional court (the Conseil constitutionel). One of the main roles
of this court is to examine laws for their constitutionality before they are enacted.
There is no formal constitutional court of this kind in England, although, as we will
see, the UK Supreme Court has some degree of constitutional role.
u As well as having a vertical structure, where appeals can be made from some
courts to others higher up in the hierarchy, France also has different courts on the
horizontal levels of its court structure. Criminal and civil cases are heard in the
‘judicial courts’, while public law cases are heard in separate administrative courts.
This is different from the English system, which has no separate administrative
courts for public law cases; these are heard in the ordinary courts.
u There are a number of more specialised courts in the French legal system, for
example, commercial courts (tribunaux de commerce) and labour courts (conseil de
prud’hommes).
11.4.1 The United Kingdom Supreme Court

The UK Supreme Court was established by Part 3 of the Constitutional Reform Act 2005
and officially came into being on 1 October 2009. It replaced the Appellate Committee
of the House of Lords (generally referred to simply as the House of Lords) in its judicial
capacity and assumed the jurisdiction of the House of Lords. The Supreme Court is,
with a few exceptions, the final court of appeal in the United Kingdom, although not
for criminal cases from Scotland.
Most of its work involves hearing appeals on points of law of public importance from
the Court of Appeal, but it may occasionally hear an appeal directly from the High
Court (the ‘leapfrog’ procedure). The Supreme Court comprises the President, who is
the Head of the Court (currently Lord Reed), a Deputy President (currently Lord Hodge)
and 10 other Justices of the Supreme Court. It is a superior court and a court of record
(a court whose proceedings are kept on permanent record) and hears about 70 cases
a year. A case is usually heard by a panel of five justices, though this can be increased
to seven or even nine depending on the importance of the case. In two recent cases
of the highest constitutional significance, the Supreme Court notably sat in a panel of
eleven justices.
The creation of a Supreme Court represented a major change both to the justice
system of England and Wales and to the constitution. At the time that the change was
proposed, in 2003, the 12 judges of the Appellate Committee of the House of Lords
(who were known as the law lords) sat as the final court of appeal and heard cases in
a committee room that was located within Parliament. Although separate from the
legislative function of the House of Lords as the upper chamber of Parliament, the
co-location of both legislative and judicial activity was capable of causing confusion
in the mind of the public. The government’s intention in creating the Supreme Court
was to make absolutely clear the separation of the judiciary and executive, especially
since the passing of the Human Rights Act 1998. The Government Consultation Paper
published by the Department for Constitutional Affairs in 2003, which preceded the
creation of the new Supreme Court, states that the purpose of the change was to make
clearer the independence of the judiciary:

The intention is that the new Court will put the relationship between the executive,
the legislature and the judiciary on a modern footing, which takes account of people’s
expectations about the independence and transparency of the judicial system … [the
functions of the Court] raise questions about whether there is any longer sufficient
transparency of independence from the executive and the legislature to give people
the assurance to which they are entitled about the independence of the Judiciary. The
considerable growth of judicial review in recent years has inevitably brought the judges
more into the political eye. It is essential that our systems do all that they can to minimise
the danger that judges’ decisions could be perceived to be politically motivated. The
Human Rights Act 1998, itself the product of a changing climate of opinion, has made
people more sensitive to the issues and more aware of the anomaly of the position
whereby the highest court of appeal is situated within one of the chambers of Parliament.
There is more about the Supreme Court in the case study later in this chapter.
11.4.2 The Judicial Committee of the Privy Council

The Judicial Committee of the Privy Council is the highest court of appeal for a
number of Commonwealth countries, as well as the UK’s overseas territories, crown
dependencies and military sovereign base areas. The largest number of appeals to the
Joint Committee of the Privy Council are sent by Trinidad and Tobago, the Bahamas,
Jamaica and Mauritius. You can see a map of the jurisdiction of the Judicial Committee
of the Privy Council on the website (at www.jcpc.uk/about/jurisdiction.html).
Although the Joint Committee of the Privy Council is a UK court, the substantive law
which it applies is the law of the country or territory from which an appeal comes.
The Joint Committee of the Privy Council has been co-located with the Supreme
Court since October 2009, and the judges who sit on the Joint Committee of the Privy
Council are the Justices of the Supreme Court, occasionally sitting together with
judges from constituent jurisdictions. It deals with about 40 cases per year.
You can find out more about the Joint Committee of the Privy Council on its website,
at www.jcpc.uk/index.html, and from this factsheet, at www.supremecourt.uk/docs/
beginners-guide-to-the-jcpc.pdf
11.4.3 The Court of Appeal

Although the Court of Appeal is nominally one court, it is divided into the Criminal
Division and the Civil Division. The main jurisdiction of both Divisions is appellate,
hearing appeals against first instance decisions.
Court of Appeal (Civil Division)

The head of the court is the Master of the Rolls, who is also the Head of Civil Justice.
The judges who sit in the Court of Appeal are known as a Lord or Lady Justice of Appeal.
Most of the work of the court is dealing with appeals from first instance decisions in
the High Court and the County Court.
Court of Appeal (Criminal Division)

The Lord Chief Justice is the head of the Court of Appeal (Criminal Division), and is
also the Head of the Judiciary and the President of the Courts of England and Wales.
The Lord Chief Justice sits with Lord and Lady Justices of Appeal. The court deals with
appeals against conviction or sentence from the Crown Court and also issues guidance
on sentencing for the lower courts.
Under s.1 of the Criminal Appeal Act 1995 ‘permission’ is required for an appeal from
the Crown Court even if it is on a point of law. The principal ground of appeal is that
the conviction is ‘unsafe’. Under s.9 of the Criminal Appeal Act 1995 cases may be
referred to the Criminal Division of the Court of Appeal by the Criminal Cases Review
Commission for the correction of a miscarriage of justice.

11.4.4 The High Court

Like the Supreme Court and Court of Appeal, the High Court is a superior court of
record whose decisions are regularly reported. The High Court deals with both civil
and criminal cases at first instance and on appeal. It also has a supervisory function.
Although we refer to the High Court as one court, it has three ‘divisions’: the Queen’s
Bench Division (QBD), the Chancery Division (ChD) and the Family Division (Fam).
The Queen’s Bench Division (QBD)

This is the largest of the three Divisions of the High Court. The Head of the Queen’s
Bench Division is the Lord Chief Justice (LCJ). There are about 70 judges who sit in
the QBD (known as High Court judges or puisne judges). The Queen’s Bench Division
has a wide civil jurisdiction, hearing at first instance cases in tort and contract. There
are several specialist courts: the Admiralty Court, which deals with shipping cases;
the Commercial Court, which deals with business disputes; and the Technology
and Construction Court. It should be noted that, as of July 2017, the specialist civil
jurisdictions comprising the Commercial Court and the Technology and Construction
Court, as well as the specialist courts of the Chancery Division, became together
known as the Business and Property Courts.
The Administrative Court also forms part of the Queen’s Bench Division. It comprises
the administrative law jurisdiction, and its work is directed at the lawfulness of the
acts and omissions of public bodies. This supervisory jurisdiction is exercised through
the procedure of judicial review, which is used to challenge the lawfulness of the
decision of a public body, including the procedures whereby it was reached, rather
than the substantive merits of the decision. The Administrative Court is technically just
a panel of the Queen’s Bench Division; the title ‘Administrative Court’ has no statutory
force.
The Chancery Division (ChD)

The Head of the Chancery Division is the Chancellor of the High Court, and about 16
judges (technically termed ‘puisne’ judges) sit in this Division. Issues dealt with include
bankruptcy, ownership of land, trusts and contentious probate (disputed wills). There
is a patents court within the Chancery Division with two specialist judges (now part of
the Business and Property Court).
The Family Division (Fam)

The Head of the Family Division is the President, and there are currently around 16
puisne judges in this Division. The court deals with matrimonial matters, issues to do
with adoption and other matters concerning children.
11.4.5 The Crown Court

The Crown Court has both appellate and first instance jurisdiction and sits in about 70
different places around England and Wales. The number of places in which the Crown
Court sits will be reduced as part of the government’s reforms of the justice system.
The government has decided to close 86 court and tribunal buildings overall.
The Crown Court largely deals with criminal cases brought on ‘indictment’ (the most
serious criminal offences). It also hears appeals from magistrates’ courts. Any judge
of the High Court can sit to hear cases in the Crown Court, and cases are also heard
by circuit judges and recorders (part-time circuit judges). For criminal cases heard on
indictment, the judge will normally sit with a jury – 12 citizens randomly selected from
the register of voters.
The main functions of the Crown Court are to try cases on indictment following
committal from the magistrates’ court; to hear appeals by way of rehearing from
summary trials conducted before magistrates; and to hear appeals by way of rehearing
from certain civil trials (family proceedings and licensing) heard before magistrates.

11.4.6 The Family Court

Family cases have traditionally been dealt with in the Family Division of the High Court,
the County Court and magistrates’ courts. Following a review of the family justice
system in 2011, a new single Family Court was established by the Crime and Courts Act
2013.
The Family Court deals with virtually all family cases previously dealt with in the High
Court, County Court and magistrates’ courts. The change streamlines the system for
family cases. The judiciary of the Family Court includes all levels of judge, from High
Court, circuit judges, recorders, district judges and magistrates. There is a single point
of entry for the issue of proceedings and a centralised and unified administration.
11.4.7 The County Court

Traditionally, the County Court system model has been based around the geographical
dispersion of physical court buildings, where access to civil justice is available on a
local basis around the country. The judges who sit in the county courts are circuit
judges, recorders and district judges. The jurisdiction of the County Court is relatively
broad, dealing with civil cases arising from a variety of matters, such as contract, tort,
insolvency and probate. The County Court is an inferior court and its decisions are not
reported. Whether or not cases are heard by the County Court or by the High Court
usually depends on where the dispute was originally lodged and the subsequent
exercise of gatekeeping powers of the court to transfer a matter to the High Court. As a
general rule, lower value and/or less complex cases are heard by the County Court and
higher value and/or more complex cases are heard by the High Court.
Until recently, 170 county courts provided local access to civil justice in the County
Court system. In April 2014, the single County Court came into being, which indicates
a move towards the unification of the courts and a practical attempt to make the civil
justice system more effective and less costly.
The traditional county courts are incorporated into the single County Court model as
the County Court Hearing Centres. The immediate impact of the introduction of this
new model was an initial reduction of the original number of court centres from 170 to
145. In February 2016, the closure of further County Court premises was announced as
part of the overall reduction in court and tribunal buildings in England and Wales; as
of September 2019, 127 courts and tribunals had been closed. A report by the National
Audit Office (2019) has criticised the court reduction programme for significant
delays and a failure to take account of the experience of court users and of access to
justice concerns (report available at www.nao.org.uk/wp-content/uploads/2019/09/
Transforming-Courts-and-Tribunals.pdf).
11.4.8 Magistrates’ courts

Magistrates’ courts are local courts dealing mainly with criminal matters. Magistrates’
courts are inferior courts. They are not courts of record. The judges who sit in
magistrates’ courts are generally not lawyers, but are lay magistrates or Justices of the
Peace. They are unpaid and sit part-time, generally in benches of three, assisted by a
legally qualified justices’ clerk, who advises the magistrates on the law but does not
become involved in decision-making.
One of the key features of magistrates’ courts is therefore that the magistrates
who exercise the judicial function are not professional lawyers. There are some
requirements for magistrates:
u they must be between 18 and 65 on appointment, and must retire at 70
u they need to be available to be in court for at least 13 days, or 26 half-days, a year
u they are expected to have certain personal qualities, such as being aware of social
issues, understanding people, having a sense of fairness, being reliable and being
committed to serving the community

u they must also be of good character, and are unlikely to be appointed if they have
been found guilty of a serious crime, convicted of a number of minor offences,
banned from driving in the past five to 10 years or declared bankrupt.
The use of lay magistrates potentially provides a wider cross-section of society than
the professional judiciary. They are likely also to have local knowledge of the area
where the magistrates’ court is situated, although this advantage may be lost with
the closure of many magistrates’ courts. It can be argued that, although magistrates
themselves are not legally qualified, they have the services of a legally qualified
clerk, who can give them any necessary legal advice relevant to a case. Criticisms of
lay magistrates are that they in fact represent only a very narrow, middle-aged and
middle-class section of society, that they are biased towards the prosecution case and
the police, and that their sentences are inconsistent for similar offences.
There are around 16,000 magistrates in England and Wales. There are also around
140 district judges and 170 deputy district judges, who are professionally qualified,
paid judges who sit in the magistrates’ courts. These are District Judges (magistrates’
courts), formerly known as Stipendiary Magistrates. Magistrates’ courts try minor
offences (summary offences) and conduct preliminary hearings of indictable offences
before a case is sent to the Crown Court to be tried. Thus, all criminal cases begin in the
magistrates’ courts and over 90 per cent of cases end there. Magistrates also deal with
a wide range of civil proceedings. There are around 330 magistrates’ courts.
11.4.9 Coroners’ courts

Coroners’ courts are inferior courts, the decisions of which are not reported. Their
main function is to inquire into the cause of sudden deaths. Coroners may be
lawyers or medical practitioners, and they may sit with a jury of between seven
and 11 members if that is considered necessary. Unlike courts, the process adopted
in coroners’ courts is inquisitorial (see Chapter 1 for a discussion of adversarial and
inquisitorial proceedings).
11.5 Case study: the UK Supreme Court

Now that we’ve looked at the overall hierarchy of the court system, we will go on to
consider the UK Supreme Court in more detail.
11.5.1 Openness and accessibility

The Supreme Court is a modern court, having only been established in 2009. Perhaps
because of this, the Court has taken some innovative approaches, and has shown
a desire to be open and accessible to the public. It is the only court to regularly
livestream its hearings, and judgments are published on the website as soon as
they become available, with a short press summary to make the judgment easier
to understand for readers. To allow livestreaming of cases, the Supreme Court had
to be exempted from the general prohibition on filming in courtrooms in England
and Wales. The Supreme Court building is open to the public; this is in contrast to
previous hearings in the House of Lords, where access was more limited. The Supreme
Court is very active on social media, which it uses to keep the public informed about
the Court. In these practical ways, the Supreme Court operates in quite a different
manner from the House of Lords before it. These changes are important in providing
opportunities for the public to be able to see the law in action at the highest level, and
demonstrating open and accessible justice.
Hearings at the Supreme Court are often considered to be more informal than those in
other courts; this is in contrast to the House of Lords hearings. Barristers do not usually
wear wigs and gowns when arguing cases before the court, and the judges themselves
do not wear robes; this is also part of the initiative to make the court more accessible.
If you are interested in the practical details of how the Supreme Court is different from
the House of Lords, you might want to read Lord Hope’s discussion of this in a speech
in 2010 (available at www.supremecourt.uk/docs/speech_100624.pdf).

11.5.2 Role as a constitutional court

As was noted earlier, the UK does not have an official constitutional court, unlike many
other jurisdictions. It has been argued that the UK Supreme Court now operates as the
de facto constitutional court.
Lord Reed has argued that the Supreme Court acts as the UK’s constitutional court. He
notes that the Supreme Court’s areas of jurisdiction include determining references
made to it in relation to the validity of devolved legislation (legislation made by one
of the devolved nations of Scotland, Wales and Northern Ireland). It is also the final
court of appeal in relation to other devolution issues, questions of EU law, questions of
human rights and other questions of a constitutional character. Indeed, this was one of
the main reasons for the establishment of the Supreme Court: that concerns over the
separation of powers were particularly acute when the House of Lords had to consider
constitutional issues, in particular cases arising under the Human Rights Act 1998. As
Lord Reed pointed out:
The problems inherent in having a constitutional court situated within Parliament have
become even more obvious since the 2016 referendum on EU membership, and the
subsequent litigation over the powers of Parliament in relation to Brexit. How would
it have looked to ordinary members of the public if the Gina Miller case, which turned
on where the boundary lay between the powers of the Government and the powers of
Parliament, had been heard in a committee room in the Palace of Westminster, with
judgment handed down in the chamber of the House of Lords?
11.5.3 Comparison with the US Supreme Court

The position of the US Supreme Court (SCOTUS) as a constitutional court is different
from that of the UK Supreme Court (UKSC). SCOTUS can determine whether legislation
is constitutional according to the US constitution and has the power to strike down
legislation if it is found to be unconstitutional. This power was established by the
Court itself in the case of Marbury v Madison, 5 U.S. 137 (1803). In the US legal system, it
is SCOTUS which has the final word.
This contrasts with the position of the UKSC under the constitution of the UK, in which
Parliament is sovereign. The UKSC does not have the power to declare legislation to
be unconstitutional and therefore invalid. Where English legislation is incompatible
with rights under the European Convention on Human Rights, the UKSC can issue a
declaration of incompatibility under section 4 of the Human Rights Act 1998, but this
does not have the effect of invalidating the legislation; it is left to Parliament to decide
whether or not to change the law. The UKSC can give priority to EU law over domestic
law; EU law is supreme in areas in which it applies.
Unlike judges in the UKSC, SCOTUS judges have tenure for life, which means they
potentially have a long time during which to exercise this power to shape the law. The
appointment process of judges to SCOTUS is somewhat politicised, given that they
are made by the US President, based on factors including merit, record, experience
and political affiliations. As you will learn in Chapter 13, this is very different from
the way in which judges are appointed to the UKSC. The political nature of judicial
appointments, the potentially long period of tenure in office and the power to
overturn unconstitutional legislation mean that the appointment of judges to SCOTUS
is often highly contentious.
There are other differences between the UKSC and SCOTUS, and you can read about
some of these in the UK Supreme Court’s factsheet on this topic (www.supremecourt.
uk/docs/scotus-and-uksc-comparative-learning-tool.pdf).
11.5.4 Impact of the Supreme Court

The UKSC has an impact that extends beyond deciding individual cases, important
though these decisions are for the individuals involved. Because of the doctrine of
judicial precedent, the UKSC has the ability to shape the law in a fundamental way. As
Lord Reed puts it in his speech:

The first function of the Supreme Court is to enable important questions of law to be
considered with a degree of depth, time, combined intelligence, and breadth of legal
experience, which the intermediate courts of appeal cannot normally be expected to
devote to them. Our aim is to ensure, so far as we can, that the law is clear, principled and
suitable for our times.
The Supreme Court hears the cases of greatest importance. For example, in its first
year, the Court gave landmark rulings on access to legal advice for Scottish suspects
(Cadder v HM Advocate [2010] UKSC 43), the rights of gay asylum seekers (HJ (Iran) and
HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31), and the
weight to be given to prenuptial agreements (Radmacher v Granatino [2010] UKSC 42).
More recently, the court has decided cases involving:
u abortion law in Northern Ireland: In the matter of an application by the Northern

Ireland Human Rights Commission for Judicial Review [2018] UKSC 27
u deportation of foreign criminals: KO (Nigeria) v Secretary of State for the Home

Department [2018] UKSC 53
u the proper legal route for beginning the process of leaving the European Union: R
(on the application of Miller) v Secretary of State for Exiting the European Union [2017]
UKSC 5
u the legality of the prorogation of Parliament by the Prime Minister: R (on the
application of Miller) v The Prime Minister; Cherry v Advocate General for Scotland
[2019] UKSC 41.
You will learn more about cases decided by the Supreme Court as you work through
this module. As you learn more about the Supreme Court, you can add it to what
you know to establish a fuller picture of the role and operation of the Court, and its
contribution to English law and society.
11.6 Tribunals
Tribunals are decision-making bodies established by the state, mostly to deal
with disputes between citizens and the state. There were originally around 70
different tribunals dealing with a wide range of issues, ranging across, for example,
immigration, welfare benefits, education, tax and parking. Tribunals were originally set
up in response to the increase in governmental functions, for example, the payment
of social security benefits. Disputes may arise between citizens and the state in the
exercise of these government functions: people may claim social security benefits to
which they are not entitled, or may complain that they have not been paid benefits to
which they are entitled. Tribunals were established to deal with this kind of specialist
dispute. Other tribunals were set up that were not concerned with disputes between
citizens and the state, but with disputes between individuals.
Unlike general courts, most tribunals have a relatively restricted jurisdiction. For
example, the Employment Tribunal can only hear certain types of employment law
cases. Typically (but not always), tribunal panels comprise a legally qualified tribunal
judge, who will sit together with two non-legally qualified panel members. Tribunals
tend to have less complex procedures than ordinary courts and are intended to be
accessible and user-friendly, so that those challenging the decisions of public bodies in
tribunals can proceed without legal representation.
Tribunals were reformed in November 2008 by the Tribunals, Courts and Enforcement
Act 2007. The tribunals, which had previously all been separate, became part of one
larger, unified tribunal system. This was in response to the proliferation of tribunals
that had occurred over the years, resulting in a confusing number of small tribunals,
often with conflicting jurisdictions. Rather than there being around 70 different small
tribunals, they are now organised within a First-Tier Tribunal and an Upper Tribunal.
The Tribunals, Courts and Enforcement Act 2007 created the post of Senior President of
Tribunals, who is the independent and statutory leader of the tribunal judiciary.

The First-Tier Tribunal is divided into seven ‘chambers’ to group together different
kinds of tribunal work. For example:
u the Property Tribunal handles applications, appeals and references relating to

disputes over property and land
u the Immigration and Asylum Chamber handles appeals against some decisions
made by the Home Office relating to permission to stay in the UK, deportation from
the UK and entry clearance to the UK.
The Upper Tribunal mainly hears appeals from the First-Tier Tribunal. It is a superior
court and has the same status as the High Court. Like the First-Tier Tribunal, the
Upper Tribunal works in chambers with different areas of specialism. There are four
chambers:
u the Tax and Chancery Chamber
u the Lands Chamber
u the Immigration and Asylum Chamber
u the Administrative Appeals Chamber.
Although the courts are usually seen as the focus of the legal system, tribunals are
of central importance in the resolution of many day-to-day disputes. In relation to
disputes between citizens and the state, the majority are resolved in tribunals, not
in the courts. Tribunals hear about a million cases each year, which is more than any
other part of the justice system.
The perceived advantages of tribunals are, first, that they have specialist expertise.
Tribunal chambers each deal with specialist areas, and the judges and other members
who sit on the tribunals are selected for their expertise in the relevant area. The
Employment Tribunal system provides a good example of this, since, in addition to
a legally qualified judge, these tribunals usually sit with one representative from
an employers’ panel and another from an employees’ panel. Second, tribunals are
designed to be more informal than the courts, so that they are accessible to people
without their needing legal representation. However, note the research by Hazel
Genn, which shows that this aim is not, in fact, often met in practice, and that legal
representation makes a significant difference to the likelihood of success (Lord
Chancellor’s Department ‘The effectiveness of representation at tribunals’, 1989,
at www.ucl.ac.uk/judicial-institute/sites/judicial-institute/files/effectiveness_of_
representation_at_tribunals.pdf).
11.7 European and international courts
11.7.1 The European Court of Human Rights (ECtHR)

The European Court of Human Rights (ECtHR) is an international court based in
Strasbourg and should not be confused with the CJEU in Luxembourg. The ECtHR hears
cases alleging that there has been a breach of the European Convention on Human
Rights. Judges of the ECtHR are full-time, elected for six years by the Council of Europe.
The Court operates a two-stage procedure, beginning with preliminary scrutiny by

a panel of three judges who decide if the case is admissible. If a case survives this
process it will proceed to a Chamber of seven judges who will normally determine the
case. In exceptional circumstances a seven-judge Chamber may refer a case to a Grand
Chamber of 17 judges if the case raises a serious question affecting the interpretation
of the Convention. The ECtHR does not sit within the English court hierarchy, but since
the UK has incorporated the European Convention on Human Rights into its domestic
law through the Human Rights Act 1998, the decisions of the ECtHR are highly
influential on English courts dealing with human rights issues, and the UK Supreme
Court generally follows the decisions of the ECtHR.

11.7.2 International courts

The UK is also subject to the jurisdiction of some other international courts. These
have a more limited role than the CJEU and the ECtHR in the legal system. Two of these
international courts are:
u The International Criminal Court (ICC). This court came into existence on 1 July
2002. It exercises jurisdiction over the international crimes of genocide, war
crimes, crimes against humanity and (since July 2018) the crime of aggression. The
ICC has jurisdiction over states that have ratified the Rome Statute of 1998 (this
includes the UK), this being the treaty that set up the Court. The International
Criminal Court Act 2001 gives effect to the Rome Statute in the UK, and provides for
the UK to arrest and deliver persons in the UK to the ICC, and for the enforcement
of prison sentences in the UK under the orders of the Court. The ICC’s role is
intended to complement rather than displace that of national courts: that is, states
remain primarily responsible for investigating and prosecuting those accused of
committing serious international crimes, with the ICC becoming involved only if a
state is unable or unwilling to act in a particular case.
u The International Court of Justice (ICJ). This is the main court of the United Nations.
It determines international law disputes between states and gives advisory
opinions on questions concerning international law submitted to it by the UN’s
main organs and certain UN specialised agencies. The ICJ can exercise jurisdiction
only over those states that have chosen to accept its jurisdiction, whether
generally in regard to any relevant dispute that may arise between itself and
another state that has also accepted the ICJ’s jurisdiction (this applies to the UK) or
in relation to a particular inter-state dispute that has been submitted to it.
11.8 Future directions of the court system

There are a number of developments indicative of the directions the court system may
take.
u The government has embarked on a courts and tribunals modernisation

programme. The aim of this programme is to modernise court systems by making
use of online services and the use of video technology in hearings, and therefore
to reduce the use of actual court rooms. The reform programme has proved
challenging and progress has been delayed. This programme has been considered
critically by the National Audit Office and the Public Accounts Committee, and
in January 2019 the Justice Select Committee announced that it too would be
conducting an inquiry into the modernisation programme. This modernisation
programme forms part of a general movement in the justice system towards a
wider use of modern technology, along with a reduction in and closure of physical
court buildings.
u Some innovative courts have been set up, such as the Family, Drugs and Alcohol
Court (FDAC), which brands itself ‘the problem solving court’. The aim of the FDAC
is to support parents who have substance misuse, mental health and domestic
abuse problems, so that they can achieve the best outcomes for their children, in
the context of care proceedings. This involves more than traditional court hearings.
Cases are referred to the FDAC by the local authority in the context of proceedings
for children to be taken into care. Parents are assessed by substance misuse
specialists and social workers, and a plan is put in place which includes both drug
and alcohol testing and regular court reviews. The difference between this and
ordinary courts is that the FDAC takes a problem-solving approach, which aims to
proactively respond to the problems that led to the legal care proceedings.
The previous Head of the Family Division of the High Court, Sir James Munby, has
called for family courts to become problem-solving courts. Noting the example of
the FDAC, he has stated that:

Very often … the families and children who find themselves before the courts are
the victims of multiple difficulties and deprivations: economic, social, educational,
employment, housing and health … We should be treating such families holistically
but, too often, far too little time is spent identifying the underlying problem, or, more
typically, problems and then setting out to find a solution for the problem(s). In a
sentence: family courts ought to be but usually are not problem-solving courts.
(Sir James Munby ‘What is family law? – Securing social justice for children and young
people’, Eleanor Rathbone Social Justice Public Lecture Series 2017–18, 30 May 2018, at
www.judiciary.uk/wp-content/uploads/2018/05/speech-by-pfd-what-is-family-law.pdf)
u There is some movement towards the establishment of further specialist courts. In

November 2018, the government published a consultation paper seeking evidence
on the establishment of a specialist Housing Court.
1. Explain the difference between civil and criminal courts.
2. Name the superior courts in the court hierarchy.
3. Summarise in your own words two differences between the French and the
English court systems.
4. What was the reason for the creation of the Supreme Court in 2009?
5. What are the three Divisions of the High Court? Summarise briefly what kind of
cases each Division deals with.
6. What are the advantages and disadvantages of lay magistrates?
7. Can the UK Supreme Court be considered a constitutional court? Give reasons

for your answer.
8. Of the US and UK Supreme Courts, which court do you think is more powerful,
and why?
9. In what ways are tribunals different from courts?

What is the role of the Supreme Court in the legal system, and to what extent was it
necessary for the Supreme Court to replace the Appellate Committee of the House
of Lords?


This question requires (1) an explanation of the role of the Supreme Court, and (2)
an argument about whether it was necessary to replace the House of Lords with the
Supreme Court. The following are some of the points that could be included in your
essay.
1. Brief introduction – the hierarchy of courts in the legal system; the Supreme
Court as the highest court in the UK and final court of appeal for most cases in
the UK.
2. Role of the Supreme Court: what type of cases it can hear – appeals on points of
law of public importance from the Court of Appeal, although it may occasionally
also hear an appeal directly from the High Court (the ‘leapfrog’ procedure); the
fact that it hears cases of the greatest importance – give some examples.
3. Comparison with US Supreme Court and French constitutional court and their
roles.
4. Creation of Supreme Court and replacement of House of Lords. Constitutional

issues: separation of powers – the co-location of both legislative and judicial
activity and necessity for the appearance of judicial independence.
5. Analysis of the creation of Supreme Court – is there more of an appearance of

judicial independence and separation of powers? Has this enabled the Court to
become more like a constitutional court?
6. Brief conclusion on the necessity for the creation of a Supreme Court, based on
arguments in the essay.

Notes

12 The constitutional role of the judiciary
Contents
12.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
12.2 Judicial independence and constitutional change . . . . . . . . . . . 131
12.3 Changes introduced by the Constitutional Reform Act 2005 . . . . . . 132
12.4 Independence and the European Convention on Human Rights . . . . 132
12.5 The executive and the judiciary after the Constitutional Reform Act 2005 . 133
12.6 Codification of judicial independence in statute . . . . . . . . . . . . 134
12.7 Measures supporting the independence of the judiciary . . . . . . . . 135
12.8 Personal independence of the judiciary . . . . . . . . . . . . . . . . . 137
12.9 Judicial power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140

Learning outcomes
u explain the importance of the constitutional role of the judiciary
u understand the key changes to judicial leadership made by the Constitutional
Reform Act 2005 and the reasons for the changes
u explain the importance of judicial independence and the practical measures
supporting it
u distinguish between individual and institutional judicial independence
u explain how the power of the judiciary has increased in recent years and how
this has affected the relationship with the executive.
Essential reading
¢ Slapper and Kelly, Chapter 12 ‘The judiciary’ and Chapter 13 ‘Judicial reasoning
and politics’ (available in VLeBooks via the Online Library).
¢ Judiciary of England and Wales ‘Independence’, at www.judiciary.gov.uk/about-

the-judiciary/the-judiciary-the-government-and-the-constitution/jud-acc-ind/
independence/
¢ Bogdanor, V. ‘Parliament and the judiciary: the problem of accountability’, UK

Public Administration Consortium, Third Sunningdale Accountability Lecture, 9
February 2006, at http://ukpac.wordpress.com/bogdanor-speech/
¢ Lord Sumption ‘The limits of law’, 27th Sultan Azlan Shah Lecture, Kuala Lumpur,
November 2013, at http://supremecourt.uk/docs/speech-131120.pdf
¢ Jowell, J. ‘Miller and the duties of the Lord Chancellor’, Counsel Magazine, January
2017, at www.counselmagazine.co.uk/articles/miller-and-the-duties-of-the-lc

¢ McGonnell v UK [2000] ECHR 62 (Application no. 28488/95) (see report at https://
www.bailii.org/eu/cases/ECHR/2000/62.html).
¢ R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 2)

[1999] 2 WLR 272.
¢ Locabail (UK) Ltd v Bayfield Properties Ltd [1999] EWCA Civ 3004.
¢ A v Secretary of State for the Home Department [2004] UKHL 56.
Further reading
¢ Bradley, A. ‘The new constitutional relationship between the judiciary,
government and Parliament’, Paper for House of Lords Select Committee on
the Constitution, Sixth Report, 2007, at www.publications.parliament.uk/pa/
ld200607/ldselect/ldconst/151/15111.htm
¢ House of Commons Library Briefing Paper ‘Prisoners’ voting rights:

developments since May 2015’, February 2016, at https://researchbriefings.
parliament.uk/ResearchBriefing/Summary/CBP-7461
¢ Ewing, K.D. ‘A theory of democratic adjudication: towards a representative,

accountable and independent judiciary’, Alberta Law Review 38(3) 2000–01,
p.708 (available in HeinOnline through the Online Library).
¢ Murkens, J. and Masterman, R. ‘The new constitutional role of the judiciary’, LSE
Law Policy Briefing Series, 2014, at http://eprints.lse.ac.uk/64045/1/Policy%20
briefing%202_2014.pdf
¢ Adams, E., ‘Prisoners’ voting rights: case closed?’, UK Constitutional Law

Association Blog, 30 January 2019, at https://ukconstitutionallaw.org/2019/01/30/
elizabeth-adams-prisoners-voting-rights-case-closed/
¢ Flinn, M. ‘When their Lordships open their mouths extra-judicially …’, UK Human
Rights Blog, 23 March 2012, at https://ukhumanrightsblog.com/2012/03/23/
when-their-lordships-open-their-mouths-extra-judicially/

Legal system and method 12 The constitutional role of the judiciary page 131
12.1 Introduction
Judges are the very personification of the law. The judicial function embodies the
dispassionate application of evenhandedness, integrity, and the rule of law. Judges resolve
disputes, punish offenders and, where there is no jury, determine guilt. In the more
grandiloquent accounts of law and the legal system, judges are its custodians, guardians
of its values: sentinels of justice and fair play … The role of judges is fundamental to the
common law; the centrifugal force of the judicial function drives the legal system both
in theory and in practice. And though it may be less significant in the codified systems of
Continental Europe, the influence of judges cannot be overstated.
(Wacks, 2015, Chapter 4)
This is the first of two chapters on the judiciary. In this first chapter we will review the
constitutional role of the judiciary, the significance of judicial independence for the
operation of the rule of law and the increase in judicial power – particularly in light of
the Human Rights Act 1998. Important themes which run through this chapter include
the perceived increase in the power of the judiciary in recent years, the sources of
that increase in power and whether increased judicial power raises questions about
the constitutional balance between judicial independence and the requirement of
due accountability. This chapter will also consider recent changes to the judiciary, the
creation of the Supreme Court and the change in the role of the Lord Chancellor.
The next chapter will look at the way in which judges are appointed and the changes
to judicial appointment made by the Constitutional Reform Act 2005. It will consider
judicial diversity and how this can either contribute to the authority and legitimacy of
the judiciary or detract from perceptions of judicial legitimacy.
12.2 Judicial independence and constitutional change

Judicial independence is sometimes mistakenly perceived as a privilege enjoyed by
judges, whereas it is in fact a cornerstone of our system of government in a democratic
society and a safeguard of the freedom and rights of the citizen under the rule of law.
The judiciary, whether viewed as an entity or by its individual membership, is and must
be seen to be, independent of the legislative and executive arms of government. The
relationship between the judiciary and the other arms should be one of mutual respect,
each recognising the proper role of the others. Judges should always take care that
their conduct, official or private, does not undermine their institutional or individual
independence, or the public appearance of independence.
(Guide to Judicial Conduct, 2019, at www.supremecourt.uk/about/judicial-conduct-and-

complaints.html)
The role of an independent judiciary is central to the operation of the rule of law.
Judges are expected to be personally independent in the sense that they must
decide cases purely on the strict application of the law to the evidence presented,
irrespective of personal preference or any interest in the outcome. They must be
fearless in their judgment, demonstrating moral courage as well as legal accuracy.
Judicial independence also refers to the institutional independence of the judiciary, so
that the judiciary are separate from the influence of the executive and the legislature.
The formal institutional independence of the judiciary in England dates back only as
far as the 18th century, prior to which judges could be dismissed by the monarch if the
monarch did not like their judgments. Before the 18th century judges held office at the
good pleasure of the Crown (durante bene placito), and during the 17th century kings
were liable to dismiss judges if they disapproved of their judgments. However, after
the turbulence of the English civil war (1642–46) and changes to the role of Parliament,
the formal independence of the judiciary was confirmed in the Act of Settlement
in 1701, which effectively gave judges tenure for life after appointment unless they
committed some sort of ‘misbehaviour’.

12.3 Changes introduced by the Constitutional Reform Act 2005

The Constitutional Reform Act 2005 introduced profound changes to
u the leadership of the judiciary
u the position of the final court of appeal, and
u the appointment of judges.
Prior to 2005 the historic head of the judiciary was the Lord Chancellor, who was
also responsible for appointing judges. The final court of appeal was the Appellate
Committee of the House of Lords (generally referred to simply as the House of Lords).
The Lord Chancellor is an ancient position, established around 1,400 years ago.
Originally, the Lord Chancellor was secretary to the medieval monarchs of England,
with responsibility for dealing with the King’s letters and using the Sovereign’s seal –
the Great Seal of the Realm – which came to symbolise the office. Gradually, the Lord
Chancellor took on further duties, for example, presiding over Parliament when the
monarch was not available. By the 13th century, the Lord Chancellor had become the
most senior judge in the country apart from the King himself.
The modern position, prior to the constitutional changes in 2005, was that the Lord
Chancellor was the head of the judiciary and the most senior judge in the English court
structure. But the Lord Chancellor was a political appointment made by the current
serving Prime Minister, and, once appointed, the Lord Chancellor had a seat in the
Cabinet, with responsibility for running the government department that deals with
the operation of the justice system – the Lord Chancellor’s Department (renamed
the Department for Constitutional Affairs in 2003 and renamed again in 2007 the
Ministry of Justice). In addition to being the head of the judiciary and a member of the
government, the Lord Chancellor also had a ceremonial role in the legislature, being
the ‘Speaker of the House of Lords’, the upper chamber of Parliament.
Through these various historic and executive roles, the Lord Chancellor was involved
in all three arms of the state – the judiciary, the legislature and the executive. Although
the historic peculiarity of these overlapping roles within what ought to be separate
sources of power was well-recognised, the position of the Lord Chancellor did not raise
significant constitutional concerns until after the passing of the HRA 1998. Article 6
of the ECHR requires that, for a fair trial, a case must be decided by an independent
and impartial tribunal. In this light, for example, would it be appropriate for the Lord
Chancellor, as a member of the executive, to hear a case in which decisions of the
executive were being challenged in an action for judicial review?
As Lord Steyn, a law lord, wrote in 2002:
The 1998 Human Rights Act has, of course, invigorated the process of constitutionalisation
of public law. The Lord Chancellor is a Cabinet minister. Nevertheless from time to time
he sits in the Appellate Committee … His right to do so is now controversial. Appellate
Committees which include the Lord Chancellor may not fulfil the requirement of
independence required by Article 6 of the European Convention on Human Rights.
12.4 Independence and the European Convention on

Human Rights
This issue was considered by the European Court of Human Rights in the case of
McGonnell v UK [2000] ECHR 62 (Application no. 28488/95). The case concerned the
question of the independence of the Bailiff of the island of Guernsey when performing
his judicial function. The Bailiff is a role that combines both executive and judicial
functions. The European Court of Human Rights held that there had been a breach
of Article 6 of the ECHR because the Bailiff had acted as the judge in a case in which
he had also undertaken an administrative role. The Court held that it is incompatible
with the required appearance of independence and impartiality for a judge to have
legislative and executive functions as substantial as those carried out by the Bailiff of
Guernsey. At paras.55–57 they said:

The Court considers that any direct involvement in the passage of legislation, or of
executive rules, is likely to be sufficient to cast doubt on the judicial impartiality of a
person subsequently called on to determine a dispute … The Court thus considers that
the mere fact that the Deputy Bailiff presided over the States of Deliberation when DDP6
was adopted in 1990 is capable of casting doubt on his impartiality when he subsequently
determined, as the sole judge of the law in the case, the applicant’s planning appeal …
The test of impartiality and independence is not a ‘subjective’ test (that is, whether the
Bailiff believes himself to be able to decide the case impartially). The test is an ‘objective’
test (that is, whether it would appear to a reasonable person that in deciding the case
in his judicial capacity the Bailiff might be influenced by his involvement in the issue as
a member of the executive). The approach that has been taken by the European Court
of Human Rights to the issue of impartiality is not to inquire whether or not a court is
actually impartial, but whether the court can be seen to be impartial. In order to do this,
the European Court of Human Rights introduced the idea of appearances. Since, in a
democratic society, courts must inspire confidence, it looks at the question of whether it
appears, objectively, that the court is impartial. Although the McGonnell case was about
the position of the Bailiff of Guernsey, the situation was closely analogous to that of the
Lord Chancellor in the English legal system.
The position under Article 6 of the European Convention on Human Rights was one
of the significant reasons which led to the Constitutional Reform Act 2005 eventually
removing the Lord Chancellor as head of the judiciary, and replacing him with the
Lord Chief Justice. The purpose of the change was to make explicit the separation
of powers between the judiciary and the executive. This was further reinforced by
the establishment of an independent Judicial Appointments Commission under the
Constitutional Reform Act 2005, which limited the Lord Chancellor’s involvement in
judicial appointments. A further reform introduced by the Act was the replacement
of the House of Lords as the highest appellate court with the new Supreme Court, as
discussed in Chapter 11.
12.5 The executive and the judiciary after the Constitutional

Reform Act 2005
What has been the effect of the Act on the relationship between the executive
and the judiciary? In 2014, the then Lord Chief Justice, Lord Thomas, gave a speech
focusing on the relationship between the executive, Parliament and the judiciary.
Lord Thomas underlined the critical importance of judicial independence to the rule
of law, but pointed out that, following the constitutional changes introduced by the
Constitutional Reform Act 2005, there is a need for the judiciary to work constructively
with the executive on issues relating to justice policy. In Lord Thomas’s view, it is not
beneficial that relationships between the judiciary and the other branches of the state
have diverged both before and progressively since 2005. Lord Thomas noted that:
[T]he independence of the judiciary, far from precluding relationships with the other
two branches of the state, requires engagement with both. There are two areas that can
readily be identified. First, what some describe as a dialogue through judgments where
the UK courts, in a way akin to the manner of continental Constitutional Courts, set out
their view of the existing rights at law and accord to Parliament the decision on what
to do (as for example in relation to assisted dying and in Nicklinson); and second direct
judicial engagement in strengthening access to justice, helping to make better law and in
modernising and reforming the law.
Judicial engagement must take place within the constitutional constraints of the
separation of powers doctrine, as Lord Thomas recognised:
Caution is always required when willing greater interaction between the three branches
of the state. Maintaining appropriate constitutional limits is not only of equal importance
to the rule of law but a prerequisite to it. Policy is a matter for politicians, while the
lawfulness of policy is a matter for judges. Greater engagement and influence does not
therefore amount to the erosion of the separation of the powers. As recent examples

have shown, the judiciary, the Executive and Parliament can work well together while still
respecting their functional boundaries.
(Lord Thomas ‘The judiciary, the executive and parliament: relationships and the rule
of law’, 1 December 2014, Institute for Government, at www.judiciary.uk/wp-content/
uploads/2014/12/institute-for-government.pdf)
In March 2015, Lord Falconer, the Lord Chancellor responsible for overseeing the changes
to the law in 2005, gave an important speech in which he articulated some concerns
about the change to the role of Lord Chancellor. He argued that the Lord Chancellor
should protect the independence and interests of the judiciary within government, and
should work constructively with the judiciary to bring about reform and uphold the rule
of law. Lord Falconer questioned whether, on reflection, the Act should have included a
more explicit requirement for the Lord Chancellor to have a deep understanding of the
rule of law and commitment to its protection. The speech recognised the role of the Lord
Chancellor as being part of the executive, but being responsible for standing up for the
judiciary and the rule of law (see further the report on the speech, at www.ucl.ac.uk/laws/
news/2015/mar/lord-falconer-delivers-2015-bentham-association-presidential-address-0).
This argument in fact turned out to be prescient, given the controversy over the Lord
Chancellor’s failure to uphold judicial independence and the rule of law following the
judgment in the Miller case, discussed below.
12.6 Codification of judicial independence in statute

Although the foundation of judicial independence, as we now think of it, was laid
down in the provision of the Act of Settlement 1701 that protected judges from
dismissal without good cause, most recently judicial independence was codified in the
Constitutional Reform Act 2005. Section 3(1) provides that:
The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters
relating to the judiciary or otherwise to the administration of justice must uphold the
continued independence of the judiciary.
Section 3(5) specifically prohibits interference with judicial decisions by the executive.
It provides that:
The Lord Chancellor and other Ministers of the Crown must not seek to influence
particular judicial decisions through any special access to the judiciary.
Statutory responsibility is placed on the Lord Chancellor to defend judicial

independence, and the Lord Chancellor is required to swear an oath to defend it.
The Lord Chancellor has been criticised for failing to uphold the duty to defend
judicial independence. When the case of R (Miller) v Secretary of State for Exiting the
European Union [2016] EWHC 2768 (Admin) was decided by the High Court, many media
organisations and individuals were unhappy about the decision. The decision was
admittedly a controversial one, in which the High Court decided that the government
had to obtain parliamentary authorisation before it could start the process of the
UK leaving the European Union. Many discontented media organisations criticised
the judges in very strong terms, including making personal remarks about them and
claiming that the ruling and the judges themselves were undemocratic.
Although the Lord Chancellor did eventually issue a statement defending the
independence of the judiciary, some argued that this was too little, too late, and
that she had breached her duty under s.3 of the Constitutional Reform Act 2005. The
Bar Council was among those criticising the Lord Chancellor for not defending the
independence of the judiciary (see the Bar Council press release, at www.barcouncil.
org.uk/media-centre/news-and-press-releases/2016/november/bar-council-calls-on-
lord-chancellor-to-condemn-attacks-on-judiciary/). Jeffrey Jowell argued that:
The remarks in the aftermath of the Miller decision attained a new level of vehemence
which was tailored to intimidate both judges and litigants, and to damage public
confidence in an impartial and independent judiciary. In the context of the present
charged political climate, a prudent Lord Chancellor should surely have acted to stem the
risk of damage that such misleading and inflammatory allegations may cause.

When the case was heard on appeal by the Supreme Court, the Lord Chancellor issued
a statement immediately following the decision, reaffirming the independence of
the judiciary (see the government’s press release, at www.gov.uk/government/news/
lord-chancellor-response-to-supreme-court-judgment).
12.7 Measures supporting the independence of the judiciary

The constitutional independence of the judiciary has historically been reinforced by
three significant measures:
u security of tenure and protection against dismissal
u immunity from suit, and
u reasonably generous pay and conditions of service.
12.7.1 Security of tenure

One of the most important ways in which judicial independence is protected is
through the principle of ‘security of tenure during good behaviour’. This means that
the Heads of Division, Supreme Court Justices, Lords Justices of Appeal and High Court
judges can only be removed from office by the monarch after a vote to that effect by
both Houses of Parliament. This security of tenure derives from the Act of Settlement
1701, but is now governed by the Senior Courts Act 1981 and the Constitutional Reform
Act 2005. No English judge has ever been removed in this way. This security of tenure
reinforces the independence of the judiciary by making it difficult for the government
to remove judges on political grounds, for example, by removing a judge who makes
rulings against the government.
Judges below the level of the High Court may be dismissed on the grounds of
incapacity or misbehaviour (generally offences involving moral turpitude) by the
Lord Chief Justice, who does not need approval from Parliament. This power was
used in 1983 against a circuit judge who was found guilty of smuggling tobacco and
alcohol into England on his yacht. Constance Briscoe, a recorder (part-time circuit
judge), was suspended from the judiciary in October 2012 pending the outcome of a
police investigation into allegations that she perverted the course of justice. On 1 May
2014, Ms Briscoe was found guilty at the Central Criminal Court (the Old Bailey) of the
offences and sentenced to 16 months in prison. In August 2014, the Judicial Conduct
and Investigations Office, which has responsibility for the conduct of the judiciary,
issued a statement saying that Ms Briscoe had been removed from judicial office.
Although convictions for drunk-driving are considered to amount to misbehaviour, a

single conviction will not necessarily lead to immediate dismissal. Several judges have
been convicted of drunk-driving but continued in office. Judge MacArthur, in 1997, was
told to resign by the Lord Chancellor after his third charge for drunk-driving. On the
other hand, a record of driving offences may prevent appointment as a judge. In 2014,
a solicitor who was denied appointment as a district judge because he had one too
many penalty points on his driving licence lost a legal challenge to the decision.
Graham Stuart Jones held an appointment as a deputy district judge and applied for an
appointment as a district judge in June 2013. Despite being assessed as an ‘outstanding
candidate’ for the post, with a recommendation for ‘immediate appointment’,
the selection and character committee of the Judicial Appointments Commission
(see discussion in Chapter 13) rejected his application because he was not ‘of good
character’. Jones challenged the decision by way of judicial review. Finding against
him in the High Court, Sir Brian Leveson said the Judicial Appointment Commission’s
guidelines stating that having more than six penalty points on a driving licence will
‘normally prevent’ selection were lawful, and the Judicial Appointments Commission
had exercised its discretion (Law Society Gazette, 29 May 2014, at www.lawgazette.
co.uk/law/solicitor-denied-judicial-post-loses-challenge/5041409.article).

To deal with concerns about the independence of part-time judiciary appointed

on renewable contracts (such as recorders and deputy district judges), the Lord
Chancellor in 2000 announced new terms of service. The new terms provide that
the only grounds for non-renewal of such contracts are: misbehaviour; incapacity;
persistent failure to comply with sitting requirements (without good reason); failure
to comply with training requirements; sustained failure to observe the standards
reasonably expected from a holder of such office; or the need to reduce numbers
because of changes in operational arrangements.
12.7.2 Immunity from suit

Another measure designed to support judicial independence is the rule that judges
cannot be sued in relation to things said or acts done in their judicial capacity in
good faith. Immunity from suit enables judges to honestly and fearlessly make legal
decisions without the pressure of legal action being taken against them by people
unhappy with their judgments.
In the case of Sirros v Moore [1974] 3 All ER 776, a judge wrongly ordered someone’s
detention. Lord Denning explained that the principle of immunity for the exercise of
judicial functions must be upheld even in extreme circumstances. He said:
Ever since the year 1613, if not before, it has been accepted in our law that no action
is maintainable against a judge for anything said or done by him in the exercise of a
jurisdiction which belongs to him. The words which he speaks are protected by an
absolute privilege. The orders which he gives, and the sentences which he imposes,
cannot be made the subject of civil proceedings against him. No matter that the judge
was under some gross error or ignorance, or was actuated by envy, hatred and malice, and
all uncharitableness, he is not liable to an action … Of course if the judge has accepted
bribes or been in the least degree corrupt, or has perverted the course of justice, he can
be punished in the criminal courts. That apart, however, a judge is not liable to an action
for damages. The reason is not because the judge has any privilege to make mistakes or to
do wrong. It is so that he should be able to do his duty with complete independence and
free from fear.
This principle applies to judges both of the superior and inferior courts and tribunals.
In Begraj v Secretary of State for Justice [2015] EWHC 250 (QB), the court examined the
scope of judicial immunity under s.9(3) HRA 1998. Section 9(3) states that:
In proceedings under this Act in respect of a judicial act done in good faith, damages may
not be awarded otherwise than to compensate a person to the extent required by Article
5(5) of the Convention.
In this case, the claimants argued that their right to a fair trial under Article 6 ECHR had
been breached, as Employment Appeal Tribunal members had met with the police.
Following Sirros v Moore [1975] QB 118, it was held that where a judge would benefit
from judicial immunity, the state could not be liable by virtue of s.9(3). The concept of
the immunity under s9(3) had to be given a broad definition.
12.7.3 Salary protection

Appropriate remuneration is also generally seen as essential to protect judicial
independence. It is widely accepted that judicial salaries should not be reduced
while judges are serving. Security of judicial salaries was established by s.3 of the
Commissions and Salaries of Judges Act 1760. That Act was repealed in 1879 and salary
protection is now provided for in a number of statutes.
Salary protection exists in two forms: (a) salaries, which encompass pensions, cannot
be decreased for judicial office holders; and (b) in respect of senior judicial office-
holders, salaries are paid out of a ‘consolidated fund’ rather than being paid by the
executive.
The question of whether judicial salaries can properly be reduced notwithstanding

the statutory protections has not been tested yet in England, though such reductions

have happened in other countries. There is, in principle, nothing to stop Parliament
through an Act of Parliament reducing judicial salaries or, as recently happened in
Ireland, through a constitutional amendment. In 2011, the Government of Ireland
amended the Irish constitution in order to be able to reduce the salaries of judges
in line with reductions in pay in other areas of the public sector. Article 35.5 of the
constitution had provided that ‘The remuneration of a judge shall not be reduced
during his continuance in office.’ The Twenty-Ninth Amendment of the Constitutions
(Judges Remuneration) Bill 2011 was passed in October 2011 after a referendum and
considerable public debate. The Canadian Supreme Court has also considered the
issue of whether it is unconstitutional to reduce the salary of judges. It held that it
would not be unconstitutional to do so and would not breach the principle of judicial
independence or the rule of law if it was pursued for a legitimate purpose as part of a
general reduction in salaries of public servants (in the broadest sense of the term) as
part of an overall plan of action in a national economic crisis: see R v Valente [1985] 2
SCR 673.
Judicial salaries in England and Wales are reviewed annually by an independent

body – the Senior Salaries Review Body (SSRB) – which makes recommendations to
the Prime Minister and Lord Chancellor about judicial remuneration. In reaching
its recommendations, the SSRB must have regard to the need to recruit, retain and
motivate suitably able and qualified people to exercise their different responsibilities.
In 2018, the SSRB carried out a major review of the judicial salary structure (see further
the SSRB’s report, at https://assets.publishing.service.gov.uk/government/uploads/
system/uploads/attachment_data/file/751904/Executive_Summary_Supp_to_SSRB_
Fortieth_Report_2018.pdf). The report notes that a respected and effective judiciary
is fundamental to a democratic society, but that the historically excellent reputation
of the UK judiciary is now under threat. This is because of unprecedented difficulties
in recruiting judges at nearly all levels, due to the fact that conditions of service for
judges have become much less attractive to potential applicants, including judicial
pay. The SSRB has therefore recommended ‘significant increases in the remuneration
of judges, with the largest pay increases going where there is the most obvious
recruitment need’. The government has responded by announcing a considerable
extra allowance for judges, worth 25 per cent of their basic salary. The then Lord
Chancellor noted that ‘our judges are a cornerstone of our democratic society – their
experience draws billions of pounds worth of business to the UK, and without them
people cannot get justice’.
12.8 Personal independence of the judiciary

Judicial impartiality and the personal independence of judges mean that, when
deciding legal cases, judges are expected to reach their decisions free from the
influence of bias or prejudice or political pressure.
12.8.1 Judicial impartiality and conflicts of interest

The judiciary shall decide matters before them impartially, on the basis of facts and in
accordance with the law, without any restrictions, improper influences, inducements,
pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
(United Nations Congress ‘Basic principles on the independence of the judiciary’, 1985;
www.un.org/ruleoflaw/blog/document/basic-principles-on-the-independence-of-the-
judiciary/)
Judicial impartiality requires that judges should be disqualified from presiding over
any proceeding in which the judge’s impartiality might reasonably be questioned.
Judges are therefore disqualified from presiding over cases not only when they are in
fact partial to one side or the other, but also when there is an appearance of partiality
to the reasonable observer. The appearance of a judge who is not impartial diminishes
public confidence in the judiciary and undermines the justice system. In deciding
whether or not it is appropriate to hear a case, the judge must consider whether there

might appear to be bias or ‘apparent bias’. The test for apparent bias is objective (that
is, would a fair-minded and informed observer, having considered the facts, conclude
that there was a real possibility that the judge was biased? If so, then the judge
must recuse (excuse) themselves). The test is to be applied having regard to all the
circumstances of the case (Magill v Porter [2001] UKHL 67).
The Pinochet case

This case is an important illustration of the requirement for judges to both be
impartial and appear to be impartial. Following a coup in Chile in 1973 led by General
Augusto Pinochet, horrific acts of violence were perpetrated against citizens. It was
alleged that General Pinochet was aware of this and encouraged or facilitated the
violence. In 1998, Pinochet came to England for medical treatment and while he was
in England an extradition warrant was issued in Spain for Pinochet to be tried for
torture, murder and conspiracy to murder. Pinochet was arrested in England under
the provisions of the Extradition Act 1989. Pinochet claimed diplomatic immunity in
order to try and quash the proceedings, but in November 1998, a panel of five judges
of the House of Lords, including Lord Hoffmann, rejected Pinochet’s claim. During the
proceedings, the international anti-torture campaigning group Amnesty International
made representations to the court through its legal representative. After the House
of Lords had given its decision, it was revealed that Lord Hoffmann was an unpaid
director of Amnesty International and that his wife also worked for Amnesty.
Pinochet’s lawyers then petitioned the House of Lords to review its own decision with
a differently constituted court on the ground that Lord Hoffmann’s involvement with
Amnesty International meant that he had a conflict of interest that could have affected
his impartiality. Lord Hoffmann had not declared his involvement with Amnesty nor
recused himself from the case. In January 1999, another panel of law lords set aside the
earlier House of Lords decision, on the ground that Lord Hoffmann’s involvement had
invalidated the previous hearing, and held that the substantive issue would have to be
heard by a new and differently constituted panel of law lords. The reasoning was that
the mere possibility of a conflict of interest is enough to undermine the impartiality of
the decision.
There is a long-established common law principle that no one may judge a case in
which they have an interest (nemo judex in causa sua). A judge with an interest must
decline to hear a case (recuse themselves). It was therefore very surprising that
Lord Hoffmann did not withdraw from the case or declare his interest in Amnesty
International when the group became involved in the proceedings. In the review of
the case, the House of Lords held that Lord Hoffmann had an interest in the subject
matter of the proceedings and was therefore automatically disqualified, since he
had made no disclosure about his interest. There did not need to be any inquiry into
whether there was, in reality, any bias.
The House of Lords then reconstituted the original hearing with an enlarged
committee of seven law lords. The outcome of the second House of Lords hearing was
the same as the first, but the reasoning of the decision was different. Lord Hoffmann’s
behaviour in the Pinochet case led to considerable debate in the media. Reports of his
private life were published in the newspapers and for a time there was speculation
as to whether he would have to resign. He did not, and continued in his judicial role
until retirement. However, the furore over the Pinochet case establishes two things.
First, the importance of judges both being impartial and appearing to be impartial
when deciding legal cases; and second, the extent to which judges are very difficult to
remove even when they may have demonstrated a serious error of judgment.
As an interesting aside, the publication in 2019 of the diaries of another law lord,
Lord Hope, sheds some light on the personal side of this story. These relate that Lord
Slynn, who had chaired the panel of law lords in the original proceedings, had been
concerned about Lord Hoffmann’s involvement and tried to persuade him not to sit in
the case (for more information, see a review of Lord Hope’s diaries in the Law Society
Gazette, at www.lawgazette.co.uk/commentary-and-opinion/pinochets-ghost-still-
haunts-the-law-lords/5069084.article).

Guidance on recusal before the Human Rights Act 1998

In Locabail (UK) Ltd v Bayfield Properties Ltd [1999] EWCA Civ 3004, the Court of Appeal
provided guidance on the issue of potential judicial bias as a result of social or financial
interest in a case. The Court of Appeal held that the relevant test was that set out by
the House of Lords in R v Gough (Robert) [1993] UKHL 1 – that is, whether there was in
relation to any given judge a real danger or possibility of bias. It was for the reviewing
court, not the judge concerned, to assess the risk that some illegitimate extraneous
consideration might have influenced his decision. However, where a judge was
shown to have an interest in the outcome of the case, there would be an automatic
disqualification.
In any case giving rise to automatic disqualification … the judge should recuse himself
from the case before any objection is raised. The same course should be followed if, for
solid reasons, the judge feels personally embarrassed in hearing the case. In either event it
is highly desirable, if extra cost, delay and inconvenience are to be avoided, that the judge
should stand down at the earliest possible stage, not waiting until the day of the hearing
… If, in any case not giving rise to automatic disqualification and not causing personal
embarrassment to the judge, he or she is or becomes aware of any matter which could
arguably be said to give rise to a real danger of bias, it is generally desirable that disclosure
should be made to the parties in advance of the hearing. If objection is then made, it will
be the duty of the judge to consider the objection and exercise his judgment upon it.
(para.21)
The Court of Appeal reinforced the fundamental importance of the impartiality of the
judiciary:
In determination of their rights and liabilities, civil or criminal, everyone is entitled to a
fair hearing by an impartial tribunal. That right, guaranteed by the European Convention
for the Protection of Human Rights and Fundamental Freedoms, is properly described
as fundamental. The reason is obvious. All legal arbiters are bound to apply the law as
they understand it to the facts of individual cases as they find them. They must do so
without fear or favour, affection or ill-will, that is, without partiality or prejudice. Justice is
portrayed as blind not because she ignores the facts and circumstances of individual cases
but because she shuts her eyes to all considerations extraneous to the particular case.
Any judge … who allows any judicial decision to be influenced by partiality or prejudice
deprives the litigant of the important right to which we have referred and violates one of
the most fundamental principles underlying the administration of justice.
(paras.2–3)
What type of interest might give rise to a real danger of bias? On this, the Court of
Appeal explained that:
It would be dangerous and futile to attempt to define or list the factors which may or
may not give rise to a real danger of bias. Everything will depend on the facts, which
may include the nature of the issue to be decided. We cannot, however, conceive of
circumstances in which an objection could be soundly based on the religion, ethnic or
national origin, gender, age, class, means or sexual orientation of the judge. Nor, at any
rate ordinarily, could an objection be soundly based on the judge’s social or educational
or service or employment background or history, nor that of any member of the judge’s
family; or previous political associations; or membership of social or sporting or charitable
bodies; or Masonic associations; or previous judicial decisions; or extra-curricular
utterances (whether in textbooks, lectures, speeches, articles, interviews, reports or
responses to consultation papers); or previous receipt of instructions to act for or against
any party, solicitor or advocate engaged in a case before him; or membership of the same
Inn, circuit, local Law Society or chambers.
(para.25).
Guidance on recusal after the Human Rights Act 1998

Locabail was decided before the Human Rights Act 1998 came into force. In the case of
Director General of Fair Trading v Proprietary Association of Great Britain [2001] 1 WLR 700,
the Court of Appeal modified the test for potential bias. Following the jurisprudence

of the European Court of Human Rights, the Court of Appeal held that the appropriate
test was whether a fair-minded observer would conclude that there was a real
possibility of bias. This approach was later approved by the House of Lords in Porter
v Magill [2001] UKHL. Lord Hope said the test for bias is ‘whether the fair-minded and
informed observer, having considered the facts, would conclude that there was a real
possibility that the tribunal was biased’.
Judicial conduct guides

The independence and impartiality of the judiciary are stated to be two of the main
principles of judicial conduct in the Supreme Court Guide to judicial conduct (2009).
The Guide reaffirms that ‘judicial independence is a prerequisite to the rule of law and
a fundamental guarantee of a fair trial’ and that ‘impartiality is essential to the proper
discharge of the judicial office’. It goes on to say that:
The Justices will take care that their conduct, official or private, does not undermine their
institutional or individual independence or the public appearance of independence.
These principles are based on the Bangalore Principles of Judicial Conduct, which
were endorsed by the United Nations Human Rights Commission in 2003 (see earlier
discussion in Chapter 4).
It is clear from reading the Guide that the Supreme Court justices have to maintain
a difficult balance: between, on the one hand, not being influenced by the effects
of publicity, while, on the other hand, not ignoring the significant effect which their
decisions will have, including on the wider public and in reports in the media. The
Guide illustrates the extent to which the duty of impartiality can impact on a judge’s life
outside of the Court. Supreme Court justices are to avoid extra-judicial activities that
are likely to cause them to have to refrain from sitting on a case because of a reasonable
apprehension of bias, must refrain from any party political activity and take care to avoid
the appearance of any favouritism in their personal relations with individual members of
the legal profession (see further the Guide to judicial conduct). The Supreme Court Guide
to judicial conduct draws from a similar guide for judges in other courts and tribunals
(see www.judiciary.uk/wp-content/uploads/2016/07/judicial-conduct-v2018-final-2.pdf).
12.9 Judicial power

Legal writers and political scientists are in agreement that, since the end of the
Second World War, there has been an increase in the power of the judiciary in both the
common law world and some civil law jurisdictions. The increasing legalisation of the
social world has been referred to as a shift from democracy to ‘juristocracy’ (Friedman
Goldstein, L. ‘From democracy to juristocracy’, (2004) Law and Society Review 38(3),
pp.611–29). In the UK, it is argued that this has led to an alteration in the power balance
within the constitution. The leading political scientist Professor Vernon Bogdanor
argued in a keynote speech in 2006 that the noticeable increase in judicial power is
the result of several factors:
u public discontent with the democratic process and a lack of trust in politicians
u a belief in the value of judicial review and the growth in the number of judicial
review cases
u a greater emphasis on human rights as a result of the UK becoming a more

multicultural society and also a multi-denominational society. This makes it more
difficult and necessary to protect the rights of minorities ‘who would not normally be
heard in the electoral process, and to whom electoral majorities might prove hostile’
u citizens now have a more developed sense of their rights, and they look to the
courts to defend those rights
u membership of the EU, with declarations in Factortame and other later cases that
domestic legislation is in violation of EU directives resulting in the House of Lords
operating almost as a constitutional court
u devolution in the UK, which has the potential to increase the role of the courts.

Bogdanor points out that a striking feature of the shift in power is the speed with
which judges have acquired authority and influence in Britain. He suggests that this
has happened more quickly than the growth in power of the Supreme Court in the
USA. He remarks that only six years after the introduction of the Human Rights Act
1998, judges had stepped in to protect unpopular minorities, such as suspected
terrorists, prisoners and asylum seekers. He argues that, whereas previously the public
assumed that rights were guaranteed by Parliament, things have changed:
We are now however looking increasingly to judges and not to Parliament to

guarantee our rights. We are looking increasingly to judges and not to Parliament to
check the executive. We are looking increasingly to judges and not to Parliament to
determine the division of power between Parliament and the European Union, and
between Parliament and the devolved bodies. The judiciary therefore is becoming a
more important part of our constitution. We are engaged, it seems to me, in a quiet but
nevertheless profound constitutional revolution.
He goes on to argue that judges are increasingly making decisions that used to be
made by politicians. These are decisions that are more political than legal.
These views are similar to the concerns raised by Lord Sumption in his speech on the
limits of law in 2013. He takes as one example the case of R v Lord Chancellor ex parte
Witham [1998] QB 575, in which the claimant challenged new regulations introduced
by the Lord Chancellor which increased court fees and removed the previous
exemption from paying court fees for people on income support. Laws J held that
access to justice at an affordable price was a constitutional right, which could only be
restricted with specific statutory authority. Lord Sumption suggests that an alternative
political analysis is possible: that the level of court fees is simply one of a number of
competing claims on a limited sum of money. It is for government, not the judges, to
make this kind of policy decision. It could be argued, therefore, that Witham was not
a case that was justiciable at all; judges should leave this kind of policy issue to the
executive. Lord Sumption characterises this as an example of how policy questions are
turned into legal questions, and thus fall to be decided by the courts.
Has the Human Rights Act 1998 given judges too much power? In a speech in 2013,
Lord Mance pointed out that the effect of the ECHR and Strasbourg case law has led
to the removal of sentencing discretion from the executive, the lifting of the ban on
homosexuals serving in the armed forces, the ending of detention without trial of
aliens suspected of terrorist involvement, prevention of deportation of aliens who
would, if deported, face a real risk of torture or inhuman treatment or of a flagrantly
unfair trial, and the state being held responsible for complicity in illegal rendition and
torture abroad.
The domestic effects of decisions reached in some of these areas may sometimes pinch,
but it is difficult to regard it as unforeseeable that a court, established by consent of
European states to give effect to the Convention, should reach them.
(Lord Mance ‘Destruction or metamorphosis of the legal order?’, World Policy Conference,
Monaco, 14 December 2013, at https://www.supremecourt.uk/docs/speech-131214.pdf)
12.9.1 Judicial power and judicial review

Even before the Human Rights Act 1998, concern had been voiced about the increasing
power of the judiciary as a result of the expansion of judicial review. Judicial review is a
legal mechanism by which a judge reviews the lawfulness of a decision or action made
by a public body, for example:
u decisions of local authorities in the exercise of their duties to provide various

welfare benefits and special education for children in need of such education
u certain decisions of the immigration authorities and the Immigration and Asylum
Chamber
u decisions of regulatory bodies
u decisions relating to prisoners’ rights.
(Judiciary website, at www.judiciary.uk/you-and-the-judiciary/judicial-review/)

The judge in a judicial review claim cannot substitute their own decision for that of
the public body. The focus is on looking at the way in which the decision was made, or
determining if the decision was illegal, unfair or irrational. R v Lord Chancellor ex parte
Witham [1998] QB 575, discussed above, is an example of a judicial review case in which
it was held that the Lord Chancellor had exceeded his statutory powers in changing the
system of court fees. You will learn more about judicial review in the Public Law module.
An example of an earlier judicial review case that was controversial is the Pergau Dam
case (R v Secretary of State for Foreign and Commonwealth Affairs, ex p World Development
Movement Ltd [1995] 1 WLR 386), in which there was a challenge by way of judicial
review to the Secretary of State’s decision to spend £234 million on a development
project on the Pergau Dam in Malaysia. The court found that the Secretary of State
had acted beyond his powers because the payment was made not completely for
the promotion of development, as had been authorised by statute, but in order to
facilitate certain arms sales.
The number of claims for judicial review of the decisions of public bodies was rising
sharply even before the Human Rights Act 1998 came into force (although the majority
of these were immigration and asylum matters). This sometimes brought the judiciary
into conflict with the executive, who disliked being held to account by the judiciary
through the mechanism of judicial review. In 2014, in the context of the government’s
attempt to reform judicial review, the Lord Chancellor argued in a House of Commons
debate that:
Judicial review was never intended to be a tool for pressure groups to seek to disrupt
perfectly lawful decision making in Government and Parliament, it was never designed to
be used as a political campaigning tool, and it was never intended to put the courts above
the elected Government in taking decisions over the essential interests of this country.
Yet, in far too many examples, that is precisely what it has become and is why reform is
necessary.
Lord Neuberger, then the President of the Supreme Court, argued against the
proposed reforms to judicial review:
The courts have no more important function than that of protecting citizens from the
abuses and excesses of the executive – central government, local government, or other
public bodies. With the ever-increasing power of Government, which now commands
almost half the country’s GDP, this function of calling the executive to account could not
[be] more important.
(Lord Neuberger ‘Justice in an age of austerity’, Tom Sargant Memorial Lecture 2013, 15
October 2013, at www.supremecourt.uk/docs/speech-131015.pdf)
In a recent judicial review case, and one of the most important constitutional cases
to be decided by the Supreme Court (and not involving the Human Rights Act), the
court was asked to decide whether an Act of Parliament was needed for the UK to start
the process of leaving the European Union (R (Miller) v Secretary of State for Exiting the
European Union [2017] UKSC 5). Although it was not argued in court that the Supreme
Court should not hear the case, there was some criticism in the press that the decision
was too political for the courts to decide. The Supreme Court clarified the position
about the scope of the court’s jurisdiction at the start of its judgment:
It is worth emphasising that nobody has suggested that this is an inappropriate issue for
the courts to determine. It is also worth emphasising that this case has nothing to do
with issues such as the wisdom of the decision to withdraw from the European Union,
the terms of withdrawal, the timetable or arrangements for withdrawal, or the details of
any future relationship with the European Union. Those are all political issues which are
matters for ministers and Parliament to resolve. They are not issues which are appropriate
for resolution by judges, whose duty is to decide issues of law which are brought
before them by individuals and entities exercising their rights of access to the courts
in a democratic society. Some of the most important issues of law which judges have
to decide concern questions relating to the constitutional arrangements of the United
Kingdom. These proceedings raise such issues.
(para.3)

In the Miller case, the Supreme Court decided that an Act of Parliament was needed to
start the process of the UK’s leaving the European Union; the government could not
use its own inherent power (the royal prerogative). This clearly shows that judicial
review claims can be of great significance, and can potentially give the judiciary a
considerable amount of power in relation to decisions of the executive.
12.9.2 Judicial power and developments in society

Modern developments in society have increased the reach of the judiciary into areas
far removed from traditional legal fields. An example, cited less frequently than judicial
review, is the field of medical decision-making. Advances in medicine and medical
technology have raised ethical challenges not previously contemplated. In the realms
of life and death, and leaving aside the issue of abortion, matters of extreme ethical
seriousness fall to be decided by the judiciary in situations where there are deep and
strongly held divisions in public opinion arising from differing religious, cultural and
social beliefs and values. A classic example is the Court of Appeal decision, delivered
in September 2000, in Re A (Children) [2000] EWCA Civ 254, in which the Court had to
decide whether to allow conjoined twins to be separated when it would cause the
certain death of one of them. The difficulty of the decision and the conflicting ethical
positions were reflected in Lord Justice Ward’s introduction to his judgment:
In the past decade an increasing number of cases have come before the courts where
the decision whether or not to permit or to refuse medical treatment can be a matter of
life and death for the patient. I have been involved in a number of them. They are always
anxious decisions to make but they are invariably eventually made with the conviction
that there is only one right answer and that the court has given it.
Similar in some respects was the case of Airedale NHS Trust v Bland [1993] AC 789. Tony
Bland was in a persistent vegetative state with no hope of recovery, following the
disaster at the Hillsborough football stadium, in which a large number of people were
killed and injured. Tony Bland’s doctors sought the court’s permission to withdraw his
medical treatment. The House of Lords held that any justification for invasive medical
treatment no longer existed, and Tony Bland could himself no longer choose. It would
not be unlawful for the doctors to cease to provide the treatment which they had
previously been under a duty to perform. The House of Lords too noted the difficulties
posed for the courts in this type of case:
The present appeal raises moral, legal and ethical questions of a profound and
fundamental nature, questions literally of life and death. The case has naturally provoked
much public discussion and great anxiety. Strong and sincerely held opinions have been
expressed both in favour of the decision under appeal and against it. The issues are such as
inevitably to provoke divisions of opinion. But they are fairly and squarely before the court
… It cannot shirk its duty to decide.
(Sir Thomas Bingham MR, at p.808)
In his judgment, Lord Mustill made it clear how the court must seek to discharge its duty:
The authority of the state, through the medium of the court, is being invoked to permit
one group of its citizens to terminate the life of another. Thus, although the issues spring
from a private grief and the course which is proposed is also private, in the sense that it
will not be put into effect by the state, we are nevertheless here in the field of public law.
The court must therefore be concerned not only to find a humane and morally justified
solution to the problems of those directly involved, but also to examine rigorously both
the process by which the solution is reached and the legal foundation on which it rests.
(Lord Mustill, at p.886).
Whatever we think about judges deciding these kinds of cases that are at the frontiers
of medical technology, it is strongly arguable that if such a case comes to court, the
judges have no choice but to decide it. This is even if the judges really feel that the
case addresses an area which would be better dealt with by Parliament, after lengthy
consultation and debate. (See further Chapter 5 on judicial law-making.)

12.9.3 Judicial power and the protection of human rights

In 1998, the Labour Government implemented the Human Rights Act (HRA) 1998 with
the object of ‘bringing rights home’ to Britain. As we have seen in previous chapters,
the impact of the HRA 1998 and the approach of the English courts to the HRA 1998
has been the subject of considerable debate. There seems to be general agreement
that there has been a shift in the constitutional relationship between Parliament, the
executive and the judiciary, and that the HRA 1998 has heightened tensions between
the judiciary and both the executive and Parliament. In recent years, there have been
particular areas of tension in relation to terrorism and prisoners’ voting rights. It is
notable that these are situations of human rights legislation being applied to groups
that are less popular in society; the popular media has often been highly critical of the
Human Rights Act 1998 protecting the rights of these groups. One of the fundamental
principles of human rights is, however, that they are universal and extend to all people.
For example, Article 1 of the ECHR, the obligation to respect human rights, states that:
The High Contracting Parties shall secure to everyone within their jurisdiction the rights
and freedoms defined in Section I of this Convention.
Terrorism
In the wake of the 11 September 2001 attacks on the USA, and international concern
about terrorism, the UK Government passed the Anti-Terrorism, Crime and Security
Act 2001 (ACSA). The Act gave the government power to detain without charge non-UK
citizens suspected of terrorist activities, but who could not be repatriated to their
own countries because of fear for their wellbeing. This measure was in breach of their
right to liberty, which is guaranteed under Article 5 of the ECHR. The UK Government
therefore sought permission from the European Council not to comply with this article
(derogation) on the ground that the prospect of terrorism after 9/11 threatened the life of
the nation and that there was a national emergency under Article 15 of the ECHR. Article
15 allows states to derogate from their Convention obligations in times of war or other
public emergency, but only to the extent that is strictly required in the circumstances.
In A v Secretary of State for the Home Department [2004] UKHL 56, the courts had to
consider the extent to which the ACSA complied with the HRA 1998. In this case, nine
foreign nationals were certified as suspected terrorists and detained without trial under
the ACSA. The legality of the detention was challenged. Some of the applicants had been
detained in a high security prison for three years, with no prospect of release or a trial.
The case was heard by a panel of nine judges of the Appellate Committee of the House
of Lords (this was prior to the establishment of the UK Supreme Court). The House of
Lords held that the detentions were unlawful. It accepted that there was a national
emergency justifying derogation, but said that the response to the perceived threat
was disproportionate and therefore incompatible with the ECHR. The Court held
that s.23 of the ACSA was incompatible with Article 5 (right to liberty) and Article 14
(prohibition of discrimination) of the ECHR and quashed the Human Rights Act 1998
(Designated Derogation) Order 2001 (SI 2001/3644), which was secondary legislation
and so could be quashed by the courts (unlike primary legislation, where the courts
can only issue a declaration of incompatibility). This was a significant and controversial
judgment by the House of Lords against the ACSA. On the question of the role of the
judiciary in making a declaration of incompatibility, Lord Bingham said:
It is of course true that the judges in this country are not elected and are not answerable
to Parliament … But the function of independent judges charged to interpret and apply
the law is universally recognised as a cardinal feature of the modern democratic state, a
cornerstone of the rule of law itself. The Attorney General is fully entitled to insist on the
proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making
as in some way undemocratic.
The decision in this case was criticised in the popular press. Whereas the judiciary
were seeking to apply the HRA 1998 and fundamental rule of law principles, critics
thought that the judiciary were thwarting a legitimate government response to the
threat of terrorism and overriding legislation that had been implemented through the
democratic process.

As a result of this case, the government repealed the ACSA and replaced it with the
Prevention of Terrorism Act 2005, which was itself later repealed.
The principle of open justice

In Al Rawi v The Security Service [2011] UKSC 34, the UK Supreme Court decided a case
that dealt with the fundamental right to a fair trial. The question in this case arose in
relation to claims for compensation for mistreatment by suspected terrorists who had
been detained by foreign authorities in various places, including Guantanamo Bay.
The specific question for the Supreme Court was whether a court has the power to
order a ‘closed material procedure’ (CMP) for the whole or part of the trial of a civil
claim for damages. A CMP was defined as a procedure whereby a party can withhold
certain material from the other side where its disclosure would be contrary to the
public interest. The closed material would be available to special advocates, who act
in the interests of the excluded party but who cannot take instructions from them,
and the court. The Security Service in the Al Rawi case claimed that they had security
sensitive material within their possession which they wished the court to consider in
their defence, but which could not be disclosed to the respondents.
Previously, courts could grant a public interest immunity (PII) certificate, allowing one
litigant to refrain from disclosing evidence to the others where this would be deemed
damaging to the public interest – an exception to the normal rule that all parties are
obliged to disclose any relevant evidence. In issuing such an order, the court must
balance the public interest and the open administration of justice with security
concerns about disclosure of sensitive materials.
At first instance in the High Court, the judge granted a declaration that it could be
lawful and proper for a court to order a CMP in a civil claim for damages. The Court
of Appeal disagreed, denying that a court had such a power. The Supreme Court,
by a majority, dismissed the appeal, holding that there is no power at common law
for a court to use a CMP. Such a change could only be for Parliament to make. Lords
Dyson, Hope, Brown and Kerr further held that there is no power at common law to
introduce a CMP following the conclusion of the normal PII process. A CMP, unlike the
law relating to PII, involves a departure from the principles of open and natural justice,
which are essential features of a common law trial. Lord Dyson said:
There are certain features of a common law trial which are fundamental to our system
of justice (both criminal and civil) … trials should be conducted and judgments given
in public … The open justice principle is not a mere procedural rule. It is a fundamental
common law principle.
The case was followed by the controversial Justice and Security Act (JSA) 2013. The
main purpose of the Act was to permit CMPs in relation to certain civil proceedings.
There was much opposition to the Act. The Law Society argued that the JSA infringed
open justice and jeopardised the right to a fair trial based on equality of arms as an
essential element of the rule of law. Barrister Michael Fordham said that: ‘Secret trials
undermine the principles of open justice and natural justice on which the rule of law
is built.’ This case again demonstrates that, when the government is determined to
introduce legislation to achieve certain objectives, Parliament can act through the
democratic process to override a decision of the Supreme Court.
Prisoners’ voting rights

This is another highly controversial area of public policy on which the government, until
recently, has been utterly opposed to a change in the law. UK law contained a general
prohibition on voting by prisoners. Section 3(1) of the Representation of the People Act
1983 (as amended by the Representation of the People Act 1985) provides that:
A convicted person during the time that he is detained in a penal institution in pursuance
of his sentence [or unlawfully at large when he would otherwise be so detained] is legally
incapable of voting at any parliamentary or local government election.

In a series of cases (Hirst (No 2) v UK (2005), Greens v UK (2010) and Scoppola v Italy
(2012)), the ECtHR held that a blanket prohibition of this nature is an indiscriminate
restriction on a vitally important right and is therefore incompatible with Article 3 of
Protocol No 1 (‘A3P1’, the duty to hold free and fair elections) of the ECHR. The decision
in Hirst (No 2) required the UK Government to bring forward legislation to ensure that
it complied with the ECHR. The government undertook to introduce a two-stage public
consultation process. In the Greens and Scoppola cases, the ECtHR raised concerns
about the failure of the UK to comply with the judgments of the Court. The then UK
Prime Minister David Cameron, in response to ECtHR decisions on the subject, was
reported as saying that prisoners ‘damn well shouldn’t’ be given the right to vote. He
also called for the powers of the ECtHR to be restricted.
In the case of Chester, which came before the UK Supreme Court in 2013, the appellant
was a prisoner serving a sentence of life imprisonment for murder who claimed
that his rights were being infringed because he was not entitled to vote. The claim
had been dismissed by the courts below. The High Court and Court of Appeal held
in Chester that it was not their role to sanction the government for the delay in
implementing the decision in Hirst (No 2) or to advise as to how the government might
implement a voting system that would be compatible with A3P1.
Key issues before the Supreme Court were: whether the Court should apply the
principles established in Hirst (No 2); and whether, if such principles were applied,
the current blanket ban on voting was incompatible with Chester’s rights under
A3P1. The Court also had to consider whether it should make a further declaration of
incompatibility under the HRA 1998. The Supreme Court unanimously dismissed the
appeal. With regard to claims under the Convention, the Court applied the principles
in Hirst (No 2) and Scoppola regarding the blanket ban on voting, but declined to make
any further declaration of incompatibility in respect of Chester.
Giving the lead judgment, Lord Mance said that, under the HRA 1998, the Supreme
Court is required to ‘take into account’ decisions of the ECtHR under Section 2, not
necessarily to follow them. This enables the national courts to engage in a constructive
dialogue with the ECtHR. But Lord Mance said that the prohibition on prisoner voting
in the UK had now been considered by the Grand Chamber of the ECtHR twice and,
on each occasion, found to be incompatible with A3P1. In these circumstances, it
would have to involve some truly fundamental principle of law or the most egregious
oversight or misunderstanding before it could be appropriate for the UKSC to refuse
to follow Grand Chamber decisions of the ECtHR. The ban on prisoner voting is not
a fundamental principle of law in the UK, and the circumstances do not justify a
departure from the ECtHR’s case law.
On the question of whether there should be a declaration of incompatibility, Lord

Mance held that the incompatibility of the prohibition on prisoner voting in the UK
with the Convention was already the subject of a declaration of incompatibility and
was currently under review by Parliament. In these circumstances, there was no point
in making a further declaration of incompatibility.
In the Chester case, Lady Hale pointed out that, despite the fact that the judiciary
are appointed and not elected (the ‘democratic deficit’), they perform a vital role
in protecting the rights of minority interests in societies where the majority view
prevails. She argued:
[I]n any modern democracy, the views of the public and Parliamentarians cannot be the
end of the story. Democracy is about more than respecting the views of the majority. It
is also about safeguarding the rights of minorities, including unpopular minorities … It
follows that one of the essential roles of the courts in a democracy is to protect those
rights.
As a footnote to this discussion, this matter may now have been resolved. In December
2018, the Committee of Ministers of the Council of Europe closed their supervision
of the prisoners’ voting rights cases against the United Kingdom. This followed the
UK government’s making some administrative amendments to prisoners’ voting
rights. No primary legislation was amended, therefore Parliament was not involved in

changing the law. The changes were made by way of enabling offenders released on
temporary licence to vote. The then Secretary of State stated that this amendment
would enable ‘up to one hundred offenders’ to vote, but that ‘none of them will be
able to vote from prison’. The Council of Europe stated that these measures would
satisfy the requirements of ECHR case law.
12.9.4 Judges, politics and public debate

This increase in judicial power, in particular as a result of the HRA 1998, has led the
judiciary to make decisions that can be seen to be political. Are judges becoming more
political in other ways?
Conventional wisdom is that judges should not become involved in political matters.
In order to be independent, and to be seen as independent, judges cannot become
involved in party politics by, for example, supporting political parties or attending
political events. In the past, judges were bound by the ‘Kilmuir rules’ (named after the
Lord Chancellor who formulated them), which restricted when judges could express
their opinions in the media. The reasoning was that:
This ban on judicial interaction with the media was lifted in 1987, and the guidance to
judges can now be found in the Guide to judicial conduct, which states that:
Many aspects of the administration of justice and the functioning of the courts are
the subject of necessary and legitimate public consideration, and appropriate judicial
contribution to this debate can be desirable. It may contribute to public understanding
and to public confidence in the judiciary. There is unlikely to be an objection to comment
which deals directly with the operation of the courts, the independence of the judiciary or
aspects of the administration of justice.
(Guide to judicial conduct, March 2019, at www.judiciary.uk/wp-content/uploads/2018/03/

Guide-to-Judicial-Conduct-March-2019.pdf)
The Guide reminds judges, however, to be aware that ‘participation in public debate
on any topic may entail the risk of undermining public perception in the impartiality
of the judiciary’.
Judges do increasingly express their views, in particular by giving official speeches.

The Justices of the Supreme Court not only make speeches but actively promote them
on the Supreme Court website. The Supreme Court sees it as part of its role to deliver
lectures and speeches and generally to contribute to public debate about the law, in
order to enhance the public’s understanding of legal issues and of the court, while
at the same time not compromising the appearance of their independence (see UK
Supreme Court Guide to judicial conduct, 2009). Informing the public about the legal
process and the work of the judiciary can be seen as applying the principle of open
justice: that the operation of the law should be as open and transparent as possible.
Sometimes judges may, rather than choosing to engage with the media, feel pressured
into doing so. Because of the controversial nature of certain of their decisions, such
as those discussed in this chapter, judges have sometimes been criticised by the
government and in the press (see, for example, the then Prime Minister David Cameron’s
criticisms of the courts’ decisions in prisoner voting cases and press criticisms of the
judiciary following the decision in the Miller case). The problem for the judges is that it
is difficult for them to defend themselves by commenting on an individual decision and
thus potentially compromising their independence. Lord Neuberger did in fact comment
on the Miller case after the decision, but perhaps felt able to do so as it was shortly before
his retirement as the President of the Supreme Court.

1. Explain the difference between individual and institutional independence of the
judiciary.
2. What change was made to the position of the Lord Chancellor under the
Constitutional Reform Act 2005, and why?
3. What was the test for judicial independence set out in McGonnell v UK?
4. How do security of tenure, immunity from suit and salary protection support
the independence of the judiciary?
5. What is the meaning of recusal? When should a judge recuse themselves?
6. Why was it thought that Lord Hoffmann should have recused himself in the
Pinochet case?
7. Has the Human Rights Act 1998 increased the power of the judiciary? If so, is this
a matter to be concerned about?
8. Why did the House of Lords think that the government’s action in the Belmarsh
case was disproportionate?
9. In the Chester case, what precisely was the aspect of the ban on prisoners’ voting
rights that was regarded by the Supreme Court as an infringement of Article 5 of
the ECHR?
10. What are the advantages and disadvantages of judges being able to give public
speeches and interact with the media?

Why is the independence of the judiciary regarded as important to the rule of law
and what measures are in place to protect that independence?


In answering this question, you should deal with:
u the concept of the rule of law and some of its essential features
u the principle of judicial independence, distinguishing between institutional
independence and individual independence.
You could also refer to a number of judicial review and human rights cases to
illustrate the importance of judicial independence in practice.
Your essay could be structured in the following manner.
1. What is the rule of law? The rule of law is a fundamental constitutional concept
which is used to describe the factors necessary for a well-functioning or healthy
state and, in particular, to constrain the exercise of arbitrary power (refer to
Bingham’s eight principles and the World Justice Project – see Chapter 4 of this
module guide).
2. An essential element in the rule of law, which is implicit in Lord Bingham’s

eight principles but not spelled out explicitly, is the centrality of the concept of
judicial independence (see the Bangalore Principles of Judicial Conduct).
3. What do we mean by judicial independence? Institutional independence –

essential for the rule of law – refers to the constitutional separation of powers
between the three arms of the state: legislature, executive and judiciary.
Personal independence is essential for fairness.
4. What measures are in place to protect that independence? Statutory protection

for institutional independence – Act of Settlement 1701; s.3(1) Constitutional
Reform Act 2005. Discuss other measures protecting judicial independence:
security of tenure – outline measures and give examples; immunity from suit –
outline measures; salary protection – but see changes to judicial pensions and
changes to salary in Ireland.
5. Issues for conclusion
u The constitutional independence of the judiciary from the executive and

legislature is regarded by many societies around the world as an essential
element in the operation of the rule of law.
u Evidence from recent high-profile cases (examples) and judicial speeches

(examples) suggest that the judiciary are institutionally independent.
u Although judges are cautious about issuing declarations of incompatibility

and see it as a measure of last resort, they will not shrink from doing so if
legislation is clearly inconsistent with the Human Rights Act 1998. Similarly,
in actions for judicial review, the judiciary in recent years has been prepared
to rule that the executive has acted beyond its powers, even when those
decisions have been unwelcome to the government and unpopular with
large sections of the public (examples).

Notes

13 Judicial appointment and diversity
Contents
13.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
13.2 Who are the judiciary? . . . . . . . . . . . . . . . . . . . . . . . . . 153
13.3 The public importance of judicial selection . . . . . . . . . . . . . . . 154
13.4 How diversity contributes to legitimacy . . . . . . . . . . . . . . . . 154
13.5 Judicial appointments prior to the Constitutional Reform Act 2005 . . . 155
13.6 Judicial selection process after the Constitutional Reform Act 2005 . . . 156
13.7 Problems with judicial recruitment . . . . . . . . . . . . . . . . . . 158
13.8 Alternative approaches to judicial appointment . . . . . . . . . . . . 159
13.9 Judicial training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
13.10 Increasing judicial diversity . . . . . . . . . . . . . . . . . . . . . . . 160

Learning outcomes
u identify different judicial roles and responsibilities
u explain how judicial selection and appointment can influence the legitimacy of
the judiciary
u explain why judicial diversity is regarded as important
u identify measures taken to improve judicial diversity
u discuss reasons why judicial diversity has not been achieved.
Essential reading
¢ Slapper and Kelly, Chapter 12 ‘The judiciary’ (available in VLeBooks via the Online
Library).
¢ Lady Hale ‘Judges, power and accountability: constitutional implications of

judicial selection’, speech at the Constitutional Law Summer School, Belfast, 11
August 2017, at www.supremecourt.uk/docs/speech-170811.pdf
¢ Department for Constitutional Affairs ‘Constitutional reform: a new way of

appointing judges’, Consultation Paper 10/03, July 2003, at http://webarchive.
nationalarchives.gov.uk/20100512160448/dca.gov.uk/consult/jacommission/
judges.pdf
¢ Judicial Appointments Commission website, at http://jac.judiciary.gov.uk/, in

particular, the selection process and diversity strategy.
¢ House of Lords Constitution Committee on Judicial Appointments, report, 2012,

Chapter 3 ‘Diversity’, at www.publications.parliament.uk/pa/ld201012/ldselect/
ldconst/272/27206.htm; and follow-up, 2017, Chapter 4 ‘Diversity’, at https://
publications.parliament.uk/pa/ld201719/ldselect/ldconst/32/32.pdf
¢ Lady Hale ‘Equality in the judiciary’, Kuttan Menon Memorial Lecture, 21

February 2013, at www.supremecourt.uk/docs/speech-130221.pdf
Further reading
¢ Ministry of Justice ‘The governance of Britain: judicial appointments’,
Consultation Paper 25/07, 25 October 2007, at www.gov.uk/government/uploads/
system/uploads/attachment_data/file/228725/7210.pdf
¢ Baroness Neuberger ‘Report of the Advisory Panel on Judicial Diversity’, 2010.

See especially timeline of judicial initiatives to promote diversity from p.58
onwards, at www.judiciary.uk/wp-content/uploads/JCO/Documents/Reports/
advisory-panel-judicial-diversity-2010.pdf
¢ Lord Sumption ’Home truths about judicial diversity’, Bar Council Law Reform
Lecture, 15 November 2012, at www.supremecourt.uk/docs/speech-121115-lord-
sumption.pdf
¢ Justice ‘Increasing judicial diversity’, April 2017, at https://justice.org.uk/

increasing-judicial-diversity/
¢ Gee, G. and K. Malleson ‘Judicial appointments, diversity and the equal merit
provision’, UK Constitutional Law Association Blog, 6 May 2014, at https://
ukconstitutionallaw.org/2014/05/06/graham-gee-and-kate-malleson-judicial-
appointments-diversity-and-the-equal-merit-provision/
¢ Ewing, K.D. ‘A theory of democratic adjudication: towards a representative,

accountable and independent judiciary’ (2000–01 ) Alberta Law Review 38(3) ,
p.708 (available in HeinOnline through the Online Library).
¢ Lord Burnett of Maldon ‘A changing judiciary in a modern age’, Treasurer’s

Lecture 2019, 18 February 2019, at www.judiciary.uk/wp-content/
uploads/2019/02/19022018-MT-Treasurers-Lecture-FINAL-FOR-PUBLISHING.pdf

Legal system and method 13 Judicial appointment and diversity page 153
13.1 Introduction
This is the second of two chapters on the judiciary. This chapter will move on to
consider how judges are appointed, how this process has been reformed by the
Constitutional Reform Act 2005 and the reasons for this reform. This is closely
connected with the issue of judicial diversity: whether the judges who make the rules
that govern society properly reflect the make-up of that society.
As you saw in Chapter 12, judges increasingly have power to not just interpret but, to a
certain extent, make the law. It is essential therefore that judges should satisfactorily
represent society, so they are not imposing the values of just one section of society on
the rest. This can lead people to believe that judges are ‘out of touch’ with society and
that people therefore may not get a fair hearing in court (see Genn, 1999).
This chapter will discuss the changes the Constitutional Reform Act 2005 made to
the way that judges are appointed, and the creation of the Judicial Appointments
Commission.
13.2 Who are the judiciary?

The public image of judges is perhaps of senior judges in the Supreme Court,
Court of Appeal or High Court, making legally significant decisions and developing
judicial precedents. Although these judges are, of course, of central importance
in the legal system, you should remember that, in purely numerical terms, the
majority of those who hold judicial office are in practice those who hold part-time
judicial appointments, and who make decisions that are not capable of setting legal
precedents. Their decisions will be important only for the parties affected and will not
change or develop the law. The largest number of people making judicial decisions are
in fact magistrates, who are not legally qualified. Magistrates are discussed in Chapter
18 of this guide.
The types of judges in the legal system are:
u Supreme Court Justices: there are usually 12 Supreme Court Justices.
u Lord and Lady Justices of Appeal: these judges sit in the Court of Appeal.
u High Court judges: sometimes referred to as ‘puisne’ judges. Judges are appointed
to one of the Divisions of the High Court, although may sometimes hear cases in
other Divisions. Deputy judges can also be temporarily appointed to the High Court.
u Circuit judges: these are County Court and Crown Court judges.
u Recorder: these are part-time Circuit judges.
u District judges: these judges sit in the County Court and magistrates’ courts.
The tribunals judiciary hold positions equivalent to the court judiciary, depending on
their seniority.
Some of the important judicial offices are:
u Lord Chief Justice: this is the most senior member of the judiciary and is the
President of the Courts of England and Wales. The Lord Chief Justice is also the
President of the Criminal Division of the Court of Appeal.
u Master of the Rolls: this is the second most important judicial office after the Lord
Chief Justice. The Master of the Rolls is President of the Civil Division of the Court of
Appeal.
u President of the Supreme Court and Deputy President of the Supreme Court.
u President of the Family Division of the High Court of Justice: the senior judge in the
Family Division.
u President of the Queen’s Bench Division and Judge in Charge of the Administrative
Court.

u Chancellor of the High Court: exercises the function of organising the Chancery
Division of the High Court.
The UK Supreme Court publishes biographies of the 12 justices on its website. You
can read the biographies, and get an idea of the background of the Justices, at:
www.supremecourt.uk/about/biographies-of-the-justices.html You can also read
biographies of the Court of Appeal judges, at www.judiciary.uk/you-and-the-judiciary/
going-to-court/court-of-appeal-home/coa-biogs/
13.3 The public importance of judicial selection

Although the public may not be very familiar with the detail of judicial selection
processes, there is considerable interest among some sections of the public,
academics and the media in who the judges are, the decisions that they take and
their behaviour both in and out of court. The public and media are well aware of the
significant power wielded by the judiciary. They are also aware that, although the
judiciary is one arm of the state, judges in England and Wales, unlike members of
the executive or legislature, are not elected to office. The judiciary do not, therefore,
possess the ‘democratic legitimacy’ of government or Parliament. Indeed, it suffers
from what is referred to as a ‘democratic deficit’.
The legitimacy that the judiciary enjoys must derive from their authority as experts
and the status of the post. It is important for this legitimacy that the public has
confidence in the competence of the judiciary and respect for their personal qualities
and the way in which they exercise the considerable power that has been entrusted to
them by virtue of their office. As Aharon Barak has remarked:
An essential condition for realizing the judicial role is public confidence in the judge …
[T]he judge has neither sword nor purse. All he has is the public’s confidence in him.
(Barak, A. The judge in a democracy. (Princeton: Princeton University Press, 2006)

[ISBN 9780691136158] p.109)
Given their power, independence and security of tenure, the selection of judges is a
matter of great importance. The English judiciary, at least since the 19th century, has
enjoyed a global reputation for high standards of legal skill and propriety. Corruption
is virtually unknown within the judiciary and the English courts are trusted by overseas
litigants, especially international businesses, who choose English law and the English
courts to deal with legal arrangements and the resolution of disputes. However, in rule
of law terms, selection and appointment of judges is a critical issue. As Brian Tamanaha
has argued:
Whenever rules of law have authority, and judges have the final say over the interpretation
and application of the law, judges will determine the implications of those rules of law …
[J]udges must be selected with the utmost care, not just focusing on their legal knowledge
and acumen, but with at least as much attention to … their willingness to defer to the
proper authority for the making of law (accepting legislative decisions even when the
judge disagrees), to their social background (to insure that judges are not unrepresentative
of the community), to their qualities of honesty and integrity (to remain unbiased and
not succumb to corruption), to their good temper and reasonable demeanour (to insure
civility), and to their demonstrated capacity for wisdom. Judges must be individuals who
possess judgment, wisdom, and character … It was Aristotle who first insisted that the
character and orientation of the judge is the essential component of the rule of law.
(Tamanaha, B. On the rule of law: history, politics, theory. (Cambridge: Cambridge University
Press, 2004) [ISBN 9780521604659] p.125)
13.4 How diversity contributes to legitimacy

The objective of selecting well-qualified lawyers to sit on the bench is to maintain the
quality and reputation of successive generations of judges. Quality is not, however,
the only factor that influences public confidence in the judiciary. In recent years, there
has been growing concern that although the quality of the judiciary has remained
high, its composition does not reflect either society at large or the characteristics of

the modern legal profession. Ewing (2000–01) has argued that ‘the first requirement
of any institution which exercises legislative power is that it should be representative
of those on behalf of whom it exercises that power.’ Although normally this would
be by election, Ewing goes on to argue that while it may not be desirable for judges
to directly represent the community, ‘there is no reason why they cannot be
representative of the community, in terms of obvious considerations such as race and
gender, and in terms also of social background, so that a judicial career is open, in
principle and in practice, to all who are suitably qualified’.
Thus the purpose of judicial selection processes is not only to ensure that well-
qualified candidates are appointed to office, but also that the judiciary as an
institution is reflective of the society that it serves. It is therefore necessary to look in
some detail at appointment processes, and at the pressing issue of lack of diversity
within the judiciary, particularly at senior levels.
It is important to note that the argument is not that an unrepresentative judiciary

are unsatisfactory or do a bad job, but that a judiciary whose composition reflects
an apparent lack of fairness runs the risk of undermining their own authority and
legitimacy.
13.5 Judicial appointments prior to the Constitutional Reform

Act 2005
In 2006, the system of judicial appointments was fundamentally transformed. The
Constitutional Reform Act 2005 established a new independent Judicial Appointments
Commission (JAC), which began its work in April 2006. We will evaluate the objectives,
achievements and shortcomings of the new JAC, but before doing so it is necessary
first to be aware of the system that the JAC replaced, and the reasons why, by 2005,
many people felt that there was a need for a change in the appointments system.
Before 1990, when the Courts and Legal Services Act (CLSA) 1990 was passed, eligibility
for most judicial appointments was limited to qualified barristers who had been in
practice for a number of years. A key justification for limiting judicial appointment
to the Bar was the belief that experience as an advocate was the best preparation
for judicial appointment, and, because the Bar was a relatively small community of
professionals, potential candidates for judicial appointment would be well-known
by serving judiciary, who were thought to be the best people to assess legal skill and
general suitability for judicial office.
After the CLSA 1990, the basic eligibility criterion was changed to rights of audience,
defined in s.119 of the Act as:
the rights to exercise any of the functions of appearing before and addressing a court
including the calling and examining of witnesses.
The result of this change was to break the Bar’s monopoly of eligibility for higher
judicial office and to open up the Bench to solicitors and potentially other groups of
legally qualified professionals and, ultimately, academics.
As will be discussed later in this chapter, the modern view is that good judges need
to be able to demonstrate a wide range of skills and qualities, and that advocacy
experience (acquired through the rights of audience qualification) equips candidates
with some but not all of these skills.
Traditionally, judicial appointments were the responsibility of the Lord Chancellor

and the judicial appointments group in the Lord Chancellor’s Department (now the
Ministry of Justice). Until the mid-1990s, most appointments to the bench were made
‘by invitation’ rather than application. This means that prospective judges were not
able to apply for appointment, but would be invited by the Lord Chancellor to take
up appointment. The Lord Chancellor’s view on who to appoint to judicial posts
was formed on the basis of confidential consultation or what was known as ‘secret
soundings’ with the serving judiciary about senior members of the Bar.

The process largely lacked transparency and the features that one associates with
modern recruitment processes. There was no advertising, no clear articulation of
selection criteria, no job descriptions or formal interviews. Towards the end of the
1980s and early 1990s there was increasing criticism of the lack of transparency of
judicial selection processes.
Although there were criticisms of lack of transparency of the judicial appointments

process prior to 2006, there was no criticism of the quality of those being appointed.
The main concern was whether those being appointed were too homogeneous –
lacking the gender, ethnic, social and cultural diversity of the general population of
England and Wales and, very importantly, the diversity of the eligible pool of practising
barristers and solicitors.
It was argued that the serving judiciary, especially at the senior levels, were
overwhelmingly white males, from relatively privileged backgrounds who had been
privately educated and attended university at either Oxford or Cambridge. Some
pejoratively referred to the senior judiciary as ‘male, pale and stale’. All of the members
of the House of Lords were male until 2004, when the first ever woman member was
appointed, Baroness Hale of Richmond. All members were white and, in 2004, virtually
all (including Baroness Hale) had attended either Oxford or Cambridge. The issue of the
diversity of the judiciary of England and Wales has been a matter of debate and some
concern since the early 1990s. It is discussed in detail in the next section.
13.6 Judicial selection process after the Constitutional Reform

Act 2005
The government’s proposal in 2003 to set up a Judicial Appointments Commission,
independent of government, with significant input from non-lawyer members, was
regarded by many commentators as an important and beneficial constitutional
change. This is not to suggest that the change was welcomed by all. Certainly, some
members of the judiciary were apprehensive about whether such a Commission would
be well placed to select the best candidates for judicial office, while some members of
the executive were concerned at the reduction in their input to the process.
The change began in 2003 when the Secretary of State for Constitutional Affairs at
the time, Lord Falconer, issued a consultation paper setting out the government’s
reasons for establishing a new independent Judicial Appointments Commission. There
were two principal reasons: first, to reinforce the constitutional separation of powers
between the executive and judiciary; and second, to increase the diversity of the
judiciary. The consultation paper expressed the objectives as follows:
In a modern democratic society it is no longer acceptable for judicial appointments to be

entirely in the hands of a Government Minister. For example the judiciary is often involved
in adjudicating on the lawfulness of actions of the Executive. And so the appointments
system must be, and must be seen to be, independent of Government. It must be
transparent. It must be accountable. And it must inspire public confidence.
There is a second point … the current judiciary is overwhelmingly white, male, and from a
narrow social and educational background. To an extent, this reflects the pool of qualified
candidates from which judicial appointments are made: intake to the legal professions
has, until recently, been dominated by precisely these social groups.
Of course the fundamental principle in appointing judges is and must remain selection
on merit. However, the Government is committed to opening up the system of
appointments, to attract suitably qualified candidates both from a wider range of social
backgrounds and from a wider range of legal practice. To do so, and, to create a system
which commands the confidence of professionals and the public, and is seen as affording
equal opportunities to all suitably qualified applicants, will require fresh approaches and
a major re-engineering of the processes for appointment … Accordingly the Government
intends to establish an independent Judicial Appointments Commission to recommend
candidates for appointment as judges on a more transparent basis.

The CRA 2005 established the Judicial Appointments Commission. Although the title
includes the word ‘appointments’, in fact the Commission only makes recommendations
after selection processes have been completed. The 2005 Act required that the Lord
Chancellor had to approve appointments and, under the Act, the Lord Chancellor has a
power of veto. The influence of the senior judiciary was also retained through a statutory
consultation process. Following a review of the appointments process in 2011/12 (see the
discussion later in this chapter), the Crime and Courts Act 2013 introduced a change to
the final responsibility for appointment decisions, as follows:
u appointments to the High Court and above continue to be made by the Lord
Chancellor
u appointments below the level of the High Court are now made directly by the Lord
Chief Justice rather than the Lord Chancellor
u appointments to tribunals are now made by the Senior President of Tribunals.
13.6.1 The Judicial Appointments Commission

The Judicial Appointments Commission (JAC) is responsible for the selection of
candidates for judicial office to the High Court and all courts and tribunals below
the High Court. The JAC is involved in appointments to the Court of Appeal, Heads of
Division and Supreme Court but does not control the process of those appointments.
The JAC comprises a lay Chair and 14 members: five judicial members, two professional
members, five lay people, one tribunal judge and one lay magistrate.
The JAC has three statutory obligations:
u to select solely on merit
u to appoint only people of good character, and
u to have regard to the need to encourage diversity in the range of persons available
for selection for appointments.
The drafting of the CRA 2005 carefully avoided placing on the Commission a statutory
responsibility to increase the diversity of the judiciary. Instead, the Commission’s
responsibility is to widen the pool of candidates available for appointment.
13.6.2 Appointment solely on ‘merit’

The concept of merit as a selection criterion requires broadly that the best-qualified
person for a role is selected on the basis of their skill and experience. In practice,
this requires that the knowledge, experience, abilities and personal suitability of
candidates is evaluated against the requirements of the position. The process of
selection is designed to provide evidence of which candidate is the best-qualified for
any particular position. There are five main selection criteria:
u intellectual capacity
u personal qualities
u an ability to understand and deal fairly
u authority and communication skills
u leadership and management skills.
13.6.3 The selection process

The JAC has established a transparent selection process, which is published on its
website. It explains how selections are made and provides material for potential
candidates to understand the skills and qualities that they need to develop in order
to be appointed to a wide range of judicial appointments in courts and tribunals. The
selection process as set out on the Commission’s website includes:
u application forms
u references

u shortlisting (which may include a qualifying test)
u interviews
u role plays
u statutory consultation
u character checks.
After all of these processes have been completed, a report is made to the Lord
Chancellor if the appointment is to the High Court or above, to the Lord Chief Justice
for court appointments below the High Court and to the Senior President of Tribunals
for tribunal appointments.
After its establishment, the key objectives of the JAC were to modernise and make
fully transparent its selection processes and to take steps to widen the pool of
candidates making applications for judicial appointments. In order to widen the pool,
the JAC established a programme of education and outreach work designed to raise
the profile of the JAC, to dispel myths about judicial appointment and to encourage
qualified people from groups under-represented within the judiciary to apply for
appointment.
The groups initially identified as ‘under-represented’ within the judiciary were women;
black, Asian, and minority ethnic (BAME) candidates; solicitors; and candidates with
disabilities. The JAC believed that if it operated completely transparent and fair
processes, removed barriers to application and encouraged the widest possible range
of people to apply for appointment, then its selection processes would inevitably lead
to a more diverse judiciary.
Its performance in this respect, however, has been the subject of considerable
criticism, almost from the moment it began its work. The second half of this chapter
will evaluate the importance of increasing diversity, the expectations as to what
the JAC would be able to achieve and the suggested reasons for its failure to meet
expectations – especially in relation to senior appointments to the judiciary.
Appointments to the Supreme Court follow a different system, with the convening of
a selection Commission by the Lord Chancellor. The selection Commission includes
senior members of the judiciary and members of the judicial appointment bodies
in England and Wales, Scotland and Northern Ireland. The Commission decides its
own selection procedures, though in practice these are likely to be similar to those
adopted by the Judicial Appointments Commission for appointments to other courts.
A Supreme Court judge does not have to have held judicial office previously.
13.7 Problems with judicial recruitment

Concerns have been expressed about the current levels of recruitment to the judiciary
in England and Wales. The previous Lord Chief Justice, Lord Thomas, noted in his report
to Parliament in 2016 that there are serious difficulties in attracting well-qualified
candidates for positions in the higher levels of the judiciary, and that this is now
‘extremely urgent’. Lord Thomas did not cite any one reason for these difficulties, but
did discuss problems of morale among the judiciary and the issue of pay restraint. He
therefore supported the judicial salary review being undertaken by the SSRB (discussed
in Chapter 12), and suggested that the government’s court modernisation programme
could provide opportunities to improve judges’ working conditions. (The report can be
found at www.scribd.com/document/329865918/LC#fullscreen&from_embed)
This concern about judicial recruitment was echoed by the House of Lords
Constitution Committee in November 2017. After hearing evidence from the Judicial
Appointments Commission and other experts, the Committee concluded that ‘We
are seriously concerned about recruitment to the bench.’ (See https://publications.
parliament.uk/pa/ld201719/ldselect/ldconst/32/3202.htm)

13.8 Alternative approaches to judicial appointment

As can be seen from the preceeding discussion, the England and Wales justice system,
like most other common law jurisdictions, selects candidates for judicial office from
among experienced legal practitioners who have demonstrated excellent legal skills
and high standards of integrity in practice.
By contrast, in civil law jurisdictions, most judges are recruited from among recent
law graduates and selection is based on performance in examinations, rather than
practice. The pattern of judicial careers is therefore rather different between common
law and civil law jurisdictions. Because of the requirement for distinction in practice in
common law jurisdictions, appointments to judicial office rarely occur before the age
of 40 for positions in the inferior courts and rarely before the age of 50 for the High
Court Bench and above. On the other hand, in civil law jurisdictions it is common to
find junior judges in their twenties and thirties.
Lady Hale classifies the different ways of appointing judges as follows:
1. Civil law systems: a career judiciary.
2. Common law systems:
a. ‘Tap on the shoulder’. This is the system which was used in England before the
Constitutional Reform Act 2005.
b. Popular election. This system is used in some states of the USA.
c. Independent merit-based selection. This is the current English method with

the Judicial Appointments Commission.
(Lady Hale ‘Judges, power and accountability: constitutional implications of judicial

selection’, 2017)
13.8.1 Appointment of judges in Germany

Germany can be taken as an example of judicial recruitment in a civil law jurisdiction,
where, instead of judges being taken from already experienced legal professionals,
there is a separate career judiciary. In Germany, prospective judges have to pass
a professional qualification which involves studying at university, passing a first
examination, carrying out a period of apprenticeship and then taking a second
state exam. In fact, all future lawyers in Germany follow this same professional path,
whether they intend to become a judge, a prosecutor or a solicitor/barrister. The
opportunity to become a judge after training depends on the level achieved in the
examinations. In contrast to the appointment of the judiciary in England and Wales,
there is no policy in Germany of recruiting judges from the ranks of other legal
professionals, for example, barristers.
13.8.2 House of Lords Constitution Committee

In 2012, the House of Lords Constitution Committee considered the viability of
alternative methods for appointing judges in England and Wales. One suggestion was
that judicial appointment procedures or senior judicial posts should be subject to pre-
or post- appointment hearings, or that Parliament should otherwise be involved in the
judicial appointment process. It was argued that:
Individual decisions made by judges impact on policy and determine the interpretation
of legislation enacted by Parliament. Some witnesses argued that in respect of legislation
such as the Human Rights Act 1998, and in the development of judicial review, the
judiciary has a wide margin in which to develop the law and that Parliament has a
legitimate interest in the manner in which this is done.
(House of Lords Constitution Committee report on Judicial Appointments, Chapter 2, at

https://publications.parliament.uk/pa/ld201012/ldselect/ldconst/272/27205.htm#a11)

This idea was echoed in some comments following R (Miller) v The Prime Minister;
Cherry v Advocate General for Scotland [2019] UKSC 41, which proposed that pre-
appointment hearings for Supreme Court judges should at least be considered.
Despite the fact that the Supreme Court was making a legal decision based on legal
and constitutional principles, some, including the Attorney-General, Geoffrey Cox,
thought that the Supreme Court had become involved in making a political decision,
and that there may therefore need to be some political supervision over judicial
appointments.
The counter-arguments from the House of Lords Constitution Committee were

that this method of appointing judges risked compromising judicial independence,
and judicial appointment must remain removed from the political process. A pre-
appointment hearing by a parliamentary committee ‘would also risk undermining the
public’s confidence that the senior judiciary is appointed strictly on merit and having
regard to integrity and independence’. The Committee concluded that
We are against any proposal to introduce pre-appointment hearings for senior members
of the judiciary. However limited the questioning, such hearings could not have any
meaningful impact without undermining the independence of those subsequently
appointed or appearing to pre-judge their future decisions. In the United Kingdom, judges’
legitimacy depends on their independent status and appointment on merit, not on any
democratic mandate.
The Committee gave some brief consideration to the concept of a career judiciary, as
found in civil law systems. They noted that witnesses to their inquiry did not support
the idea of a career judiciary in the English legal system, preferring instead a system in
which judges benefit from time spent in legal practice as well as greater maturity due
to being appointed to the bench at a later stage in life.
13.9 Judicial training

Given that judges are in the main still appointed from practising barristers, what
training do they receive – both when first appointed and on an ongoing basis – for
what is quite a different role from being an advocate?
The Lord Chief Justice is responsible for arrangements for training the judiciary under
the Constitutional Reform Act 2005. The training is carried out by the Judicial College
and consists of induction courses at different levels of the judiciary, and continuing
education courses, for which there is a programme of seminars and conferences. It
is part of the philosophy of the Judicial College that training is under the control and
direction of the judiciary themselves.
The Judicial College was established under the Constitutional Reform Act 2005, and
replaced the Judicial Studies Board and the Tribunals Judicial Training Group. Before
the Judicial Studies Board, there was only minimal training for the judiciary. This
contrasted in particular with the training of judges in jurisdictions where there is a
career judiciary.
13.10 Increasing judicial diversity
13.10.1 What is the diversity issue?

The judiciary of England and Wales has historically reflected the demographic
composition of the Bar, drawing its membership from well-educated, middle-class,
white male barristers. As we have seen, over the last two decades eligibility for judicial
office has been broadened so that most members of the legal profession are now
eligible for appointment. During this period, the legal profession has diversified, so
that it reflects more closely the gender and ethnic composition of the population.
Since the early 1990s, there has been a growing recognition that, although eligibility
for judicial office has been widened and the legal profession has become increasingly

diverse, these changes have been reflected only slowly in appointments to the entry
levels of the judiciary and very little at the highest levels.
Concern about lack of diversity is not a recent phenomenon. In 1992, the then Lord
Chief Justice, Lord Taylor, commented that:
The present imbalance between male and female, white and black in the judiciary is
obvious … I have no doubt that the balance will be redressed in the next few years …
Within five years I would expect to see a substantial number of appointments from both
these groups.
(‘The judiciary in the nineties’, the Richard Dimbleby Lecture 1992)
Over a quarter of a century later, commentators are still discussing the issue of judicial
diversity, and the progress that Lord Chief Justice Taylor had confidently predicted in
1992 has yet to materialise, especially at the highest levels of the judiciary.
Although, in recent years, there have been some positive high-level judicial
appointments – for example, the appointment of Mr Justice Singh as the first BAME
judge in the Court of Appeal; the appointment of Lady Hale as the first female
President of the Supreme Court; as well as Lady Black and Lady Arden as female Justices
of the Supreme Court; and the appointment of Dame Victoria Sharpe as the first
female President of the Queen’s Bench Division of the High Court – the statistics reveal
that progress towards increasing diversity remains very slow.
13.10.2 Why does judicial diversity matter?

In 2004, the Department for Constitutional Affairs issued a paper entitled ‘Increasing
diversity in the judiciary’. The paper set out some of the government’s views as to why
judicial diversity is important.
Society must have confidence that the judiciary has a real understanding of the problems
facing people from all sectors of society … If the make-up of the judiciary is not reflective
of the diversity of the nation, people may question whether judges are able fully to
appreciate the circumstances in which people of different backgrounds find themselves
… 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.
It has been suggested that there are three important arguments for ensuring that
the composition of the judiciary is diverse: equal opportunities, the legitimacy of the
judiciary and the quality of judicial decision-making.
First, as a matter of equal opportunities, all properly qualified people should have
an equal opportunity to apply and to be selected for judicial office. Well-qualified
candidates for judicial office should be selected on their merits and should not be
discriminated against, either directly or indirectly, on grounds of gender, skin colour,
ethnic origin, class, sexuality, disability, etc. Failure to appoint candidates from
under-represented groups raises the suspicion that direct or indirect discrimination
is influencing appointment. The concept of human equality implies that talent is
randomly and widely distributed in society, rather than being concentrated, for
example, within particular racial groups. The more widely one searches, the more
likely it is that the best candidates will be identified. The current under-representation
of certain well-qualified groups within the judiciary suggests that factors other than
pure talent may be influencing willingness to apply.
Second, lack of diversity undermines the legitimacy of the judiciary as an institution.

In a democratic society, it is unacceptable for an unelected institution that wields
the power of the judiciary to be drawn from a narrow and homogeneous group that
reflects neither the diversity of society nor the legal profession. We have noted that,
although the judiciary perform a law-making function, they lack democratic legitimacy
because they are unelected. Being representative, or at least reflective, of broader
society contributes to legitimacy and public confidence, while failure to appoint well-
qualified diverse candidates to judicial office represents exclusion from participation
in power and undermines judicial legitimacy. As Paterson and Paterson argue:

diversity in senior judicial appointments is not simply a desirable goal, but a fundamental
constitutional principle. At the very heart of the legitimacy of an independent judiciary
are its claims to be able to deliver ‘fairness’. A senior judiciary whose composition reflects
an apparent lack of fairness runs the real risk of undermining its own authority.
(Paterson, A. and C. Paterson ‘Guarding the guardians? Towards and independent,

accountable and diverse senior judiciary’, 2012, p. 5, at https://strathprints.strath.
ac.uk/40759/1/guarding_the_guardians.pdf)
Giving the Fiona Woolf Annual Lecture in June 2014, ‘Women in the judiciary’, Lady Hale
argued that lack of judicial diversity affects the democratic legitimacy of the judiciary:
In a democracy governed by the people and not by an absolute monarch or even an
aristocratic ruling class, the judiciary should reflect the whole community, not just a small
section of it.
(www.supremecourt.uk/docs/speech-140627.pdf)
Third, it is argued that judges drawn from a wide range of backgrounds and life
experiences will bring varying perspectives to bear on critical legal issues. This is
regarded as important where there is scope for the exercise of judicial discretion and
where considerations of policy influence judicial decisions in the public interest. It
is thought that having a range of perspectives and values (core beliefs about what is
good and right, and what is bad and wrong) within the judiciary will lead to better
debate and decision-making. As President Obama commented in 2009 during the
nomination process of Justice Sonia Sotomayor – the first Hispanic person to be
appointed to the US Supreme Court:
It is proper for justices to resort to their deepest values and the depth and breadth of their
empathy in deciding the truly difficult cases. Indeed, in such cases the critical ingredient is
supplied by what is in the judge’s heart.
Sir Terence Etherton, who is Master of the Rolls and one of the few senior judges who
speaks openly about his sexual orientation, has written about why he thinks that it is
important for the judiciary to include people with a wide range of backgrounds, values
and life experiences. He argues that when eminent judges disagree about hard cases
in areas which are ‘policy laden, or concern human rights or constitutional rights’,
it is because their personal outlook, based on personal experience, influences their
decision. He quotes the famous judge and writer Benjamin Cardozo, who served on
the US Supreme Court from 1932–38, who wrote:
Every one of us has in truth an underlying philosophy of life. There is in each of us a stream
of tendency, whether you choose to call it philosophy or not, which gives coherence and
direction to thought and action.
(Cardozo, B. The nature of the judicial process. (New Haven: Yale University Press, 1921)
[ISBN 0486443868] p.12)
13.10.3 Progress on judicial diversity – too little, too slow?

Since its inception, the JAC has developed a strategy to increase the diversity of those
making applications for judicial appointment and those appointed to judicial posts.
The JAC strategy involves three elements:
1. fair and non-discriminatory processes
2. advertising and outreach
3. working with others to break down barriers.
Every year the Judicial Diversity Statistics Bulletin is published, which provides an
overview of the diversity of appointed judges in the courts, judges and non-legal
members of tribunals, and magistrates. For the purpose of the statistics, diversity
information is collected and published in relation to gender, ethnicity, age and
professional legal background.
The judicial diversity statistics for 2020 show that:
u Thirty-tw0 per cent of court judges and 47 per cent of tribunal judges were female.
Among court judges, senior roles showed lower representation of female judges

than in less senior roles. Just 26 per cent of judges in senior roles (High Court and
above) are women.
u Eight per cent of court and 12 per cent of tribunal judges were BAME, as were 16 per
cent of non-legal tribunal members. Since 2014, BAME representation has increased
two percentage points for court judges and two percentage points for tribunal judges.
u Thirty-two per cent of court judges and 63 per cent of tribunal judges were from
non-barrister backgrounds. Virtually all declaring their background as non-
barristers were formerly solicitors. Non-barrister representation is still very low (3
per cent) at senior court level.
(Data from ‘Diversity of the judiciary: legal professions, new appointments and current
post-holders 2020 statistics’ (available at: https://assets.publishing.service.gov.uk/
government/uploads/system/uploads/attachment_data/file/918529/diversity-of-the-
judiciary-2020-statistics-web.pdf).)
Although it is clear that there has been an increase in the number of women appointed
to judicial posts since the establishment of the JAC, particularly in tribunals and lower
courts, the JAC’s record on selecting candidates from BAME backgrounds, and from
solicitors, academics and legal executives, seems to have fallen below expectations.
This is particularly the case for senior appointments. Although the JAC does not control
appointments to the Supreme Court nor Heads of Divisions, it is involved in all of those
appointments. Since the JAC was established, only two women have been appointed
to the Supreme Court, Lady Black (appointed in October 2017; retired January 2021) and
Lady Arden (appointed in October 2018). Lady Hale, who until her retirement in January
2020 was President of the Supreme Court, joined the House of Lords in 2004, which was
before the establishment of the JAC in 2006. At the beginning of 2013, there were still
only four Lady Justices of Appeal, although later in that year an unprecedented number
were appointed (a further three). There are currently eight Lady Justices of Appeal.
13.10.4 Attempts to improve diversity
The Advisory Panel on Judicial Diversity

Some three years after the establishment of the JAC, frustrated at what he saw as slow
progress in increasing judicial diversity, the Lord Chancellor announced the setting up
of an Advisory Panel on Judicial Diversity in April 2009. Chaired by Baroness Neuberger,
the key objectives of the panel were:
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 and in all courts in England and Wales.
The panel reported its findings in 2010 and put forward 53 key measures which it
thought necessary to increase diversity within the judiciary. Although the panel did
not think that there was a single measure that would solve the problem of increasing
judicial diversity, they felt that a coordinated approach would lead to progress. The
recommendations included:
u The concept of a judicial career and the continuous monitoring of judicial

performance.
u Encouragement of young people and members of under-represented groups

(e.g. solicitors and lawyers in public service) to consider a judicial career and to
gain experience of working with the judiciary, without the imposition of diversity
quotas or targets.
u The creation of a Judicial Diversity Taskforce to oversee the initiatives arising from
the report.
u Consideration of judicial working conditions and attempts to remove myths about

working conditions.
(See the Advisory Panel on Judicial Diversity report, at www.judiciary.gov.uk/

publications/advisory-panel-recommendations)

The recommendations of the Advisory Panel on Judicial Diversity were accepted by the
government and the Lord Chief Justice.
House of Lords Constitution Committee

In May 2011, the House of Lords Constitution Committee announced a further inquiry
into judicial appointments. The focus of the inquiry was broader than the issue of
judicial diversity and included key questions such as:
u Is the judicial appointments system fair, independent, transparent and open?
u Does the process secure an independent judiciary?
u Are candidates appointed on merit?
u Is the judiciary sufficiently diverse?
The Committee reported in 2012 and made a number of recommendations. These

included that the senior judiciary should not sit on panels to select their successor,
and that the power to appoint judges below the High Court should be transferred
from the Lord Chancellor to the Lord Chief Justice.
The Committee also said that it was important to increase judicial diversity in
order to increase public trust and confidence in the judiciary. To achieve this they
recommended that:
u the recommendations of the Neuberger Panel should be implemented more

rapidly
u selection panels for judicial appointments must include lay persons
u selection panels should be gender and – wherever possible – ethnically diverse
u the duty on the JAC to widen the pool should be extended to the Lord Chancellor
and the Lord Chief Justice
u the ‘tipping provision’ contained in s.159 of the Equality Act 2010 should be used as
part of the appointments process
u if there is no significant increase in the number of women and BAME appointments

to the judiciary in five years’ time, the government should consider setting non-
mandatory targets for the JAC.
(See House of Lords Constitution Committee report on Judicial Appointments, at www.

publications.parliament.uk/pa/ld201012/ldselect/ldconst/272/27202.htm)
Several of the recommended changes to judicial appointments made by the House

of Lords Constitution Committee were introduced in the Crime and Courts Act 2013.
These were that:
u appointments below the level of the High Court are now made directly by the Lord
Chief Justice rather than the Lord Chancellor and appointments to tribunals are
now made by the Senior President of Tribunals
u senior judges are no longer permitted to participate in the process to select their
successors
u more flexible working patterns have been introduced for the High Court and
above.
In a follow-up report in November 2017, the House of Lords Constitution Committee

noted the lack of progress since their previous report. They quoted the words of
one expert questioned by the Committee, who said that he was ‘appalled at the lack
of progress we have made towards a really diverse judiciary’, and that there was ‘a
potential crisis of legitimacy of the judiciary unless this is addressed. We cannot go
forward in a diverse Britain without a diverse judiciary. We really cannot. It is noticed.
It is significant. It is increasingly important. We really have to address it.’ (See House
of Lords Constitution Committee follow-up report on Judicial Appointments, para.117,
at https://publications.parliament.uk/pa/ld201719/ldselect/ldconst/32/32.pdf). The

Committee noted that this report had said that ‘a senior judiciary that so markedly
does not reflect the ethnic, gender or social composition of the nation is a serious
constitutional issue. Much more must be done to strengthen diversity for reasons of
legitimacy, quality and fairness.’ (See para.118.)
Although welcoming some recent initiatives, the House of Lords Constitution

Committee came to the overall conclusion in its 2017 report that ‘While there has been
some improvement in the diversity of the judiciary since our last report, it has been
limited.’ (See para.147.)
Lammy review
The Lammy review, in September 2017, criticised the lack of BAME judges in the
criminal justice system. This was an independent review into the treatment of, and
outcomes for, BAME individuals in the criminal justice system (see www.gov.uk/
government/publications/lammy-review-final-report). Interestingly, the review noted
that there is a gulf between the backgrounds of defendants and judges. Twenty per
cent of defendants who appeared in court in 2017 were from BAME backgrounds,
compared with 11 per cent of around 16,000 magistrates, and 7 per cent of around
3,000 court judges.
The Lammy review suggested that the JAC should examine the way it carries out its
recruitment process, to avoid the possibility that ‘one generation does not simply
recruit the next in its own image’. As much as possible should be done to make sure
that BAME applicants are prepared for the recruitment and judicial selection process.
To achieve greater judicial diversity, the review recommends that:
The government should set a clear, national target to achieve a representative judiciary
and magistracy by 2025. It should then report to Parliament with progress against this
target biennially.
The response from the government to the Lammy review was that it does not consider
targets to be the right approach to improving judicial diversity (see www.gov.uk/
government/publications/lammy-review-government-response).
Judicial Diversity Forum

The Judicial Diversity Forum brings together organisations from across the legal
sector to identify ways of improving judicial diversity. It replaced the previous Judicial
Diversity Taskforce in November 2015. Members of the Forum include the JAC, the
Ministry of Justice and members of the judiciary.
The first joint initiative of the Judicial Diversity Forum was launched in April 2019.
This consists of a government-funded judicial education programme, designed
to support people who are applying to become a judge. This Pre-Application
Judicial Education programme will involve under-represented groups being able
to have access to practising judges, who can share their insight into the realities of
being a judge and the ways in which participants can try to overcome perceived
barriers. Priority for the judge-led discussion group part of the training will be
given to BAME lawyers, women lawyers, lawyers with disabilities and lawyers from
a non-litigation background, including solicitors and chartered legal executives
(see www.judiciary.uk/about-the-judiciary/who-are-the-judiciary/diversity/
pre-application-judicial-education-programme-paje/).
Equal merit provision

Most importantly, the Crime and Courts Act 2013 amended the CRA 2005, so that,
where there are two or more candidates of equal merit for selection to judicial office,
a candidate may be selected for a post by the JAC for the purpose of increasing judicial
diversity. This is known as the equal merit provision (or ‘tipping point’ provision).
In April 2014, the JAC published its equal merit policy, which started in July 2014. The
JAC policy is that where two or more candidates are judged to be of equal merit
the equal merit procedure will be used where there is ‘clear under-representation
on the basis of race or gender’, determined by reference to National Census

data and diversity data published by the Judicial Office. (The JAC’s equal merit
policy is published at https://judicialappointments.gov.uk/equality-and-diversity/
diversity-and-equality-measures/equal-merit/)
It has been suggested that the JAC’s approach to the equal merit provision is overly
cautious and should be used more ambitiously. The JAC has been cautious by, first,
applying the equal merit provision only at the final stage of the application process.
Applying the provision at the earlier short-listing stage might lead to a more diverse
selection of candidates being called for interview. Second, the JAC has limited the
effect of the provision by only applying it to race and gender, because these are
the only areas where under-representation can be demonstrated by reference to
published data. It is argued that the JAC needs to widen the number of protected
groups to whom the equal merit provision can apply.
The first statistics published by the JAC since the introduction of the equal merit
provision appeared on 4 June 2015. Seven out of 305 recommendations for
appointment were made following the application of the equal merit provision. In the
most recent set of statistics in 2017, 12 recommendations were made following the
application of the equal merit provision.
This is a controversial policy, which many people disagree with, including women and
minorities who feel that being appointed under the ‘equal merit’ procedure would be
undermining to their position as a judge. Even those who agree with the policy doubt
that its use will make a significant change to diversity. This is because there are likely
to be few cases where candidates are judged to be of exactly ‘equal merit’ by selection
panels. Lady Justice Hallett, on the other hand, has argued in favour of the operation of
the equal merit provision, stating that:
I do not believe … that it is as rare as people think that you have candidates who are
equally qualified—I emphasise the words ‘equally qualified’. We are not talking about
appointing somebody because they are female when they are not as good as the man;
we are talking about two candidates who are equally qualified. They may be qualified in
slightly different ways; it does not mean that they are not equally qualified.
(House of Lords Select Committee on the Constitution, Judicial Appointments Process:

oral and written evidence, 2011, at www.parliament.uk/documents/lords-committees/
constitution/JAP/JAPCompiledevidence28032012.pdf)
A quota system?
In 2014, the then Labour Shadow Secretary of State for Justice, Sadiq Khan,
commissioned Sir Geoffrey Bindman QC and Karon Monaghan QC to report on how
to increase judicial diversity. In November 2014, they published their report, ‘Judicial
diversity: accelerating change’ (see http://ukscblog.com/wp-content/uploads/2014/11/
Judicial-Diversity-Accelerating-Change.pdf).
The report recommends the introduction of diversity quotas:

We are persuaded that a quota system is now necessary to ensure the fair and
proportionate representation of women and other minorities at senior level in the
judiciary.
The Lord Chief Justice, Lord Burnett, has, on the other hand, voiced his opposition to
the use of quotas to increase judicial diversity. Speaking in February 2019, he said:
My scepticism about targets extends to principled opposition to quotas. They are not
compatible with appointment on merit nor, ultimately, in sustaining public confidence
in the judiciary. They would undermine the overall standing of the judiciary and fatally
undermine the authority of judges who were known or thought to be ‘quota judges’.
(Lord Burnett of Maldon ‘A changing judiciary in a modern age’, Treasurer’s Lecture 2019, 18
February 2019, at www.judiciary.uk/wp-content/uploads/2019/02/19022018-MT-Treasurers-
Lecture-FINAL-FOR-PUBLISHING.pdf)
This is a highly controversial issue, and there is as yet no sign that quotas will be
implemented. Given its response to the Lammy review’s recommendations for targets
for BAME judges (see above), it seems unlikely that the current government will
implement any kind of quota system.

13.10.5 Why has there not been more progress in increasing judicial
diversity?
Experience deficit?
The problem of lack of diversity is not limited to the judiciary. A shortage of women
and minorities has been noted in government, in senior management in industry
and among senior management of universities. However, the under-representation
of women and minorities among the judiciary, as well as the under-representation of
lawyers from low-income backgrounds, has a different significance in constitutional
terms and seems to present an intractable problem in senior judicial appointments.
The suggested reasons for lack of judicial diversity include the possibility that there
are insufficient women and minorities appropriately qualified to be appointed to
senior judicial roles. In a lecture to the Bar Council in 2013, Lord Sumption put forward
this explanation for lack of diversity and argued that without positive discrimination
it would take a very long time for the English judiciary to become more diverse. In his
view, while the JAC had been broadly successful, the expectations that it would be able
to achieve significant change quickly were unrealistic. He argued that the assumption
had been that previous selection procedures discriminated against women and
minorities, whereas, in Lord Sumption’s view, the problem is lack of appropriately
qualified talent and it is just a matter of time until the problem is resolved. Lord
Sumption was strongly opposed to what he called ‘positive discrimination’, because
he felt that it would deter people from applying to the judiciary. His solution was
simply to wait until women and minorities in the legal profession became more
experienced and thus appointable (what is known as the ‘trickle up’ effect).
In a speech on equality in the judiciary in 2013, Lady Hale challenged some of Lord
Sumption’s views and suggested that because of the slow progress towards diversity
she would be in favour of some sort of action that would seek to redress the lack of
representation of women and minorities within the judiciary. She said:
So do we need to revive the argument for some special provision … to enable the
appointing commissions to take racial or gender balance into account when making their
appointments? Would that really be such a bad thing?
Self-exclusion
Another explanation for lack of judicial diversity is that under-represented groups are
not attracted by the prospect of judicial appointment and therefore self-exclude, or
that they lack the confidence to apply. Research by Genn in 2008, involving interviews
with well-qualified practitioners, revealed that some practitioners do not apply for
judicial appointment because they do not feel that they have the temperament to be
a judge; some think that they would not enjoy life on the Bench and fear losing the
flexibility and autonomy that they enjoy in practice. For some women, the male-
dominated environment of the senior judiciary felt unwelcoming and off-putting.
Selection bias
A further explanation for lack of diversity is that selectors are appointing ‘in their
own image’. This is the phenomenon of self-replication. It is a common phenomenon
in recruitment that selectors may tend to identify with and value characteristics
that they recognise as similar to their own. Given the importance of the role and
the security of tenure that judges enjoy – including the absence of any probationary
period – selectors are rightly anxious about the appointments that they make. There
may be a tendency to overvalue certain types of experience and skills, and undervalue
or be more cautious about the potential of candidates with non-traditional
backgrounds or experience. As Lord Neuberger put it in his evidence to the House of
Lords Constitution Committee:

The main problem is the cast of mind. Most of us think of a judge as a white, probably
public school, man. We have all got that problem. That is why I entirely agree with Lady
Justice Hallett, as to why it is right that we should all have diversity training. We all have
this mentality.
(House of Lords Select Committee on the Constitution, Judicial Appointments Process:

Oral and Written Evidence, 2011, at www.parliament.uk/documents/lords-committees/
constitution/JAP/JAPCompiledevidence28032012.pdf )
The concept of ‘merit’ in action

The definition of merit used by the JAC – what is known as the ‘maximalist’ conception
of merit – is that there is always one person who is best suited to a particular
post. This concept may, however, be illusory. For many appointments, particularly
the more senior judicial appointments, selectors have to make fine distinctions
between the experience, skills and potential of very able people. These are difficult
judgements to make. Since the decisions about senior appointments are often made
disproportionately by serving senior judiciary, who are themselves in the main privately
educated white males, it is possible that there is some unconscious over-valuing
of familiar traits in defining who is the most meritorious candidate. Lord McNally
expressed the difficulty in his evidence to the House of Lords Constitution Committee:
I have only one problem about the merit criterion. It is often deployed by people who,
when you scratch the surface, are really talking about ‘chaps like us.’ That is the danger of
merit. Who defines it?
Paterson and Paterson (2012, p.48) have argued that there needs to be a fundamental
reconsideration of the manner in which ‘merit’ is determined in relation to judicial
appointments, particularly at a senior level:
The relentless focus on one (flawed) construction of perceived individual merit must move
towards a process in which the needs of the judiciary as a collective institution are central.
It is in relation to this that the consideration of the constitutional rationale for a diverse
judiciary becomes crucial.
1. Why do judges not have ‘democratic legitimacy’? What is the source of their
legitimacy?
2. In what ways is appointment to the judiciary different in common law and civil
law jurisdictions?
3. How did the Courts and Legal Services Act 1990 change eligibility for judicial
office?
4. Why was the Commission for Judicial Appointments established, and what was
its role?
5. What are the arguments for having a diverse judiciary?
6. In what ways does the English judiciary lack diversity?
7. What were the key recommendations of the Neuberger Panel on Judicial

Diversity?
8. What did the first House of Lords Constitution Committee report recommend to
increase judicial diversity?
9. What is the ‘equal merit’ provision introduced by the Crime and Courts Act 2013?
Is it likely to make a radical difference to judicial diversity?
10. Explain two alternative ways of appointing the judiciary. Which way is
preferable, in your opinion? Give reasons for your answer.


Explain why diversity among the judiciary is said to contribute to its legitimacy
and discuss the extent to which the judiciary in England and Wales can be rightly
described as ‘diverse’.

u An answer should provide an explanation of the term ‘diversity’ in the context of
the English judiciary.
u It should discuss why diversity can be said to be important in terms of legitimacy.
u It should consider whether the English judiciary can accurately be described as
diverse.
Your answer could be structured in the following manner.
1. What is diversity and what might a diverse judiciary look like? For example,
diversity in terms of race, gender, professional background, social background,
etc.
2. Diversity within the judiciary can be seen as important because of the power
of the judiciary. It can be argued that the judiciary should be reflective of the
society it serves (Ewing , 2000–01). See also Lady Hale’s arguments about the
importance of diversity and the reasons why this is important. The ‘democratic
deficit’ of the judiciary should also be considered.
3. This could lead to a discussion of the attempts that have been made to increase
diversity, starting in the 1990s and resulting in the Constitutional Reform
Act 2005, the appointment of the Judicial Appointments Commission and
appointments based solely on merit. Mention should be made of the equal
merit provision in the Crime and Courts Act 2013, as well as some of the other
initiatives in place.
4. The diversity statistics over the last decade show a modest increase in the
numbers of women appointed to the judiciary but less progress in terms of
BAME and non-barrister backgrounds, and this would lead to the conclusion that
the English judiciary are becoming more diverse but at a somewhat slow pace.
5. There could also be a brief discussion of the reasons why the judiciary are not
yet sufficiently diverse. Possible reasons to discuss include the experience
deficit, self-exclusion and a selection bias.

Notes

14 Legal professionals
Contents
14.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
14.2 The legal profession . . . . . . . . . . . . . . . . . . . . . . . . . . 173
14.3 The regulation of legal professionals . . . . . . . . . . . . . . . . . . 174
14.4 Legal ethics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
14.5 Solicitors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
14.6 Barristers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
14.7 Changes to legal services . . . . . . . . . . . . . . . . . . . . . . . . 176
14.8 Legal training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178

Learning outcomes
u explain the role of solicitors, barristers and other legal professionals, and the
differences between them
u describe recent changes to the legal profession and how these have changed the
way the legal profession operates
u describe proposed changes to training for the legal profession and how this
compares with the current training regime.
Essential reading
¢ Slorach et al., Chapter 6 ‘Legal services’ (available on the VLE).
¢ Slapper and Kelly, Chapter 16 ‘Legal services’ (available in VLeBooks via the
Online Library).
¢ Law Society ‘Legal professionals – who does what?’, at https://www.lawsociety.

org.uk/en/public/for-public-visitors/resources/who-does-what
¢ Sir David Clementi, ‘Review of the regulatory framework for legal services in
England and Wales: final report’, December 2004, at www.avocatsparis.org/
Presence_Internationale/Droit_homme/PDF/Rapport_Clementi.pdf
¢ Lord Neuberger ‘Ethics and advocacy in the twenty-first century’, Lord

Slynn Memorial Lecture 2016 , 15 June 2016, at www.supremecourt.uk/docs/
speech-160615.pdf
¢ Lord Neuberger ‘The future of the Bar’, Conference of the Bar Councils of
Northern Ireland and Ireland, Belfast, 20 June 2014, at www.supremecourt.uk/
docs/speech-140620.pdf
¢ Lord Neuberger ‘Reforming legal education’, Lord Upjohn Lecture, 15 November

2012, at www.supremecourt.uk/docs/lord-neuberger-121115-speech.pdf

¢ Bebb v Law Society (1914) 1 Ch 286.
Further reading
¢ Law Society, Summary of ‘Annual statistics report 2017’, 18 June
2018, at www.lawsociety.org.uk/support-services/research-trends/
annual-statistics-report-2017/
¢ Wotton, J. ‘Is the legal profession looking at fission or fusion?’, Law Society
Gazette, 2 February 2012 (available through Lexis Library in the Online Library).
¢ LSE Review of Books, ‘Book review: Tomorrow’s lawyers: an introduction

to your future (2nd ed.) by Richard Susskind’, at https://blogs.lse.ac.uk/
lsereviewofbooks/2017/09/20/book-review-tomorrows-lawyers-an-introduction-
to-your-future-2nd-ed-by-richard-susskind/
¢ Legal Education and Training Review, Executive summary, at www.letr.org.uk/

the-report/executive-summary/executive-summary-english/index.html
¢ Bourns, R. ‘Changing course on the SQE’, Law Society Gazette, 10 April 2017, at
www.lawgazette.co.uk/commentary-and-opinion/changing-course-on-the-
sqe/5060610.article
¢ Banerji, M. ‘Junior lawyers: lessons from history’, Law Society Gazette, 8 April
2019, at www.lawgazette.co.uk/commentary-and-opinion/junior-lawyers-
lessons-from-history-/5069885.article

Legal system and method 14 Legal professionals page 173
14.1 Introduction
To understand how the legal system operates, we need to understand the role of
lawyers in that system. Why are legal professionals important? One reason is that they
provide access to justice. For lay people, the law is difficult to find and to interpret, so
they need lawyers to fully access justice.
Chapter 16 will explain how changes to funding for legal cases under the Legal Aid,
introduced by the Sentencing and Punishment of Offenders Act 2012, have meant that
some people cannot afford to pay for legal advice and representation. These people
often have to represent themselves in court without a lawyer, and studies show
that this is difficult for them for a number of reasons. These people, who are termed
‘litigants in person’, are not able to properly access the justice system because they do
not have professional legal advice and representation.
Lord Neuberger has noted that

Together with judges, lawyers are the quintessential representatives, or ambassadors, of
the rule of law so far as the general public are concerned. If lawyers and judges are not
competent and honest … are not independent and ethical, the rule of law is severely
undermined; indeed, it is scarcely maintainable.
(Lord Neuberger, ‘Ethics and advocacy in the twenty-first century’, para.4)
The legal profession is therefore an important one for access to justice and the rule
of law. At the same time, it can seem shrouded in mystery, with some old-fashioned
traditions that can make the legal profession hard for lay people to understand.
Despite some viewing the legal profession as very traditional, it is in fact in a state
of change in the modern world. This chapter will consider and evaluate some of the
major changes that have taken place in recent years. It will also consider the issue of
regulation, since there are many rules governing the legal profession for the purposes
of protecting the public.
14.2 The legal profession

What does it mean to talk about the legal ‘profession’? It is generally accepted that
lawyers are professionals, but what does this mean? The Royal Commission on
Legal Services (the Benson Report 1979, pp.28–30) gave the following definition of a
profession:
u requires central organisation
u is self-regulated (or, more recently, independently regulated)
u has required minimum standards of training
u places significant importance on duty to the client
u involves the giving of specialist advice.
As you read through the information about solicitors and barristers in this chapter,
ask yourself in what ways they can be considered as professionals on the basis of this
definition.
One of the distinctive points about the legal profession in England and Wales is that it
is a divided profession between two main types of legal professionals: solicitors and
barristers. This is quite rare in the global context; other examples of the small number
of jurisdictions in which the profession is divided in this way include Scotland and
Hong Kong. Solicitors and barristers traditionally carried out very different types of
work, and this was for historical reasons. But, as this chapter will explore, there are
some moves towards an informal ‘fusion’ of the legal profession as the areas of work of
solicitors and barristers overlap to an increased extent.
A focus on solicitors and barristers should not hide the fact that there are other
professionals who do important legal work. Some of these are:

u legal executives
u patent attorneys
u licensed conveyancers
u paralegals.
Of the legal professionals mentioned here, all are regulated professionals (regulation is
discussed below), apart from paralegals, which is not a regulated profession in the UK.
14.3 The regulation of legal professionals

As a profession, lawyers are regulated. The way that legal professionals are regulated
was changed by the Legal Services Act 2007, to move from a system of self-regulation
to regulation by an independent body. The aim was to increase confidence in the
professions by subjecting them to independent regulation. The changes were as
follows:
u regulation of solicitors moved from the Law Society, which was also the
professional body for solicitors, to the independent Solicitors Regulation Authority
u regulation of barristers moved from the Bar Council, the professional body for
barristers, to the independent Bar Standards Board.
The Clementi Report (2004), which eventually led to the introduction of the Legal
Services Act 2007, criticised the previous situation in which the Law Society and the
Bar Council carried out both regulatory and professional representation functions (at
para.24):
As noted, my Terms of Reference include a requirement to propose a framework that
promotes the public and consumer interest, promotes competition, promotes innovation
and is transparent. The framework needs to meet these criteria, and be seen clearly to
do so ... I do not believe that the current combination of regulatory and representative
powers, in particular within the Law Society and the Bar Council, permit a framework that
gets close to meeting this requirement. I do not believe that the combination of functions
results in the public interest being consistently placed first.
The Legal Services Act 2007 additionally brought in a new Legal Services Board, as a
‘super-regulator’, which regulates the other legal regulators. It oversees the Office
for Legal Complaints, which administers the Legal Ombudsman scheme. The Legal
Ombudsman was established by the 2007 Act to provide a complaints mechanism for
consumers against providers of legal services.
14.4 Legal ethics

Both solicitors and barristers are bound by rules of professional ethics. Compliance
with ethical rules is taken very seriously by legal professionals, and indeed ethical
issues often arise in legal practice. In particular, solicitors and barristers owe ethical
obligations to their client and to the court.
The Law Society notes what ethics means for the solicitors’ profession:
A solicitor’s commitment to behaving ethically is at the heart of what it means to be a

solicitor …
• Ethics involves making a commitment to acting with integrity and honesty in

accordance with widely recognised moral principles.
• Ethics will guide a professional towards an appropriate way to behave in relation to

moral dilemmas that arise in practice.

• Ethics is based on the principles of serving the interests of consumers of legal services
and of acting in the interests of the administration of justice, in which, in the event of
a conflict, acting in the interests of the administration of justice prevails.
(The Law Society ‘Ethics’, at www.lawsociety.org.uk/support-services/ethics/)
The Solicitors Regulation Authority Code of Conduct sets out 10 principles that
underlie the professional ethics of solicitors, including upholding the rule of law and
the proper administration of justice, acting with integrity, not allowing independence
to be compromised and acting in the best interests of each client.
For practising lawyers, legal ethics may often give rise to conflict – for example, when
their duty to their client clashes with their duty to the court. The duty to the court
is paramount, which may have unwanted consequences for the lawyer, particularly
potential adverse financial consequences (see further the speech by Lord Neuberger
for some interesting discussion of ethical dilemmas that fell to be considered in the
courts). The Solicitors Regulation Authority has clarified recently that:
Solicitors are officers of the court and their overriding duty is to the rule of law and the
administration of justice.
(Solicitors Regulation Authority, ‘Balancing duties in litigation’, 27 November 2018,

available at www.sra.org.uk/risk/risk-resources/balancing-duties-litigation/)
14.5 Solicitors
In numerical terms, solicitors make up the larger part of the legal profession. The Law
Society’s Annual Statistics Report for 2019 shows that, as at 31 July 2019, there were
146,953 solicitors with practising certificates and 195,821 individuals in total on the
roll of solicitors (it is necessary to hold a practising certificate issued by the Solicitors
Regulation Authority to actually practise as a solicitor; the roll of solicitors is the
register of people who have qualified as solicitors).
The traditional role of a solicitor was to advise clients and to instruct barristers for
advocacy work. Solicitors are usually responsible for the day-to-day management
of contentious and non-contentious work. Contentious work means the conduct of
litigation, and includes trying to reach an agreed settlement with the other party,
drawing up court documents, instructing a barrister where necessary and so on.
The bulk of solicitors’ work is non-contentious and involves matters such as drawing
up contracts, conveyancing and giving general advice on legal matters. Although
solicitors have always had rights of audience (the right to conduct advocacy) in some
lower courts, they were not, in the main, advocates. Under the Courts and Legal
Services Act 1990, solicitors were allowed rights of audience in higher courts, provided
they passed the higher courts qualification. Another divergence from the traditional
picture of a solicitors’ firm is the move away from generalist solicitors, who practised
in most areas of law, to specialists, sometimes in very niche areas.
Solicitors usually work in partnerships, although there are still some sole practitioners
(solicitors who work alone, without partners). Partnerships can range from very large
City law firms to small high-street practices. Many solicitors now work ‘in-house’, as
solicitors for companies or for local or central government.
Although women are, overall, well-represented in the solicitors’ profession, they are
less so at senior levels, with women being under-represented as partners in law firms.
The Law Society’s Annual Report notes that, in 2017, for the first time, female solicitors
holding practising certificates outnumbered their male colleagues, with 50.1 per cent
of practising certificate holders being women. It was, however, only with the passing
of the Sex Disqualification (Removal) Act 1919 that women were able to qualify as
solicitors. Before this Act was passed, the famous case of Bebb v Law Society (1914) 1 Ch
286 had held that a woman was not a ‘person’ for the purposes of the Solicitors Act
1843 and could not therefore legally become a solicitor.

14.6 Barristers
Barristers form a relatively small part of the legal profession compared with solicitors.
There are just under 17,000 practising barristers in England and Wales (compare this
with the 195,821 solicitors on the roll of solicitors). Every barrister must be a member of
one of the four Inns of Court in London: Lincoln’s Inn, Inner Temple, Middle Temple or
Gray’s Inn. Each barrister is ‘called to the bar’ (that is, officially becomes a barrister) by
one of the Inns, and the Inns continue to play a role in barristers’ professional lives.
Barristers’ traditional roles are as courtroom advocates and as specialist legal advisers.
Before the Courts and Legal Services Act 1990, only barristers had rights of audience in
the superior courts. As well as being courtroom advocates, barristers can provide an
Opinion (detailed written advice) on an aspect of the law. The most able barristers can
‘take silk’: that is, become Queen’s Counsel, often abbreviated to QC. These barristers
are recognised as being lawyers of special merit and work on the most complex cases.
They wear court gowns made of silk, hence ‘taking silk’.
Unlike solicitors, barristers do not work in partnerships. Each barrister is technically

self-employed but works with other barristers in group offices known as chambers.
The chambers are run by clerks, who allocate work to the barristers in chambers and
negotiate their fees.
Members of the public do not usually instruct a barrister directly, but through a solicitor.
Traditionally, this was the only way that barristers could be instructed. Since 2004, there
has been a Direct Access Scheme, which allows members of the public to go directly to
a barrister who are part of that scheme for most types of work. Most barristers, however,
still prefer to receive instructions through solicitors.
14.7 Changes to legal services

The provision of legal services has been changed substantially, in particular by:
u the Courts and Legal Services Act 1990, which:
u broke up monopolies in legal work to better serve users of legal services
u provided for higher rights of audience for solicitors
u broke solicitors’ monopoly on conveyancing work by introducing licensed

conveyancers
u the Legal Services Act 2007, which:
u implemented elements of the Clementi Report of 2004
u changed the way that the legal profession is regulated
u liberalised the provision of legal services by allowing ‘alternative business

structures’.
This chapter has already discussed higher rights of audience for solicitors, provided
they pass the appropriate qualification and changes to the regulation of lawyers. It
has also briefly discussed direct access to barristers, which has changed the way that
people can access this part of the legal profession.
In 2003, the government commissioned the Clementi Report (published in 2004) to

review the regulation of the legal profession with a view to opening the legal market
to competition. The report noted three areas of concern:
u the regulatory framework, which was said to be ‘outdated, inflexible, over-complex

and insufficiently accountable or transparent’
u the complaints systems, in particular whether systems for complaints against

lawyers, run by lawyers themselves, could win consumer confidence
u the restrictive nature of business structures; it was argued that business practices
had changed and the skills necessary to run a modern legal practice had developed.

Most of the recommendations of the Clementi Report were accepted and were
incorporated into the Legal Services Act 2007. Section 1 of the Act sets out its
objectives:
(a) protecting and promoting the public interest;
(b) supporting the constitutional principle of the rule of law;
(c) improving access to justice;
(d) protecting and promoting the interests of consumers;
(e) promoting competition in the provision of services;
(f) encouraging an independent, strong, diverse and effective legal profession;
(g) increasing public understanding of the citizen’s legal rights and duties;
(h) promoting and maintaining adherence to the professional principles.
One of the major differences brought about by the Legal Services Act 2007 was
therefore a change in how law firms can be organised. It allowed for legal services to
be offered by Alternative Business Structures (ABS). Unlike in a traditional law firm,
in an ABS non-lawyers can manage or run law firms. So, for example, an accountancy
firm might decide to offer legal services. This is sometimes referred to colloquially
as ‘Tesco law’, meaning the provision of legal services by organisations that have not
traditionally done so (Tesco being a well-known UK supermarket).
14.7.1 Evaluation of changes to the legal profession

What impact have these changes had on the legal profession, and what might they
mean for the future? One question that arises is whether the divided profession of
solicitors and barristers could merge into one single legal profession. Once solicitors
were able to carry out advocacy in the senior courts (provided they had the requisite
advocacy qualification), the work of solicitors and barristers became increasingly
similar. This blurring of the lines between work carried out by legal professionals
extends to other types of professionals who undertake work traditionally performed
by lawyers – for example, licensed conveyancers, who now carry out some of solicitors’
conveyancing work. Similarly, members of the public are now able to instruct
barristers directly through the direct access scheme rather than having to go through
a solicitor.
Wotton (2012) argues that the freedom of barristers and solicitors to practise together
in partnership (as Alternative Business Structures) could mean that more solicitor-
advocates and barristers practise together to perform litigation-based work. He
notes that when solicitors gained higher court advocacy rights, this removed ‘one of
the key functional planks supporting the division of the profession by two separate
titles’. However, Wotton’s view is that the two separate titles of barrister and solicitor
will survive for the foreseeable future, if only because there is no strong current of
opinion in favour of fusion. Lord Neuberger’s (2014) view is that even if there is a
fusion between different branches of the legal profession, there will still be a need for
independent barristers specialising in advocacy or advisory work.
The ability of lawyers to operate in Alternative Business Structures has been said to
have had a number of advantages, such as:
u increased competition in the legal marketplace
u more accessible and affordable legal services for consumers
u innovative practices
u improved resolution of consumer complaints
u greater use of information technology.
Lord Neuberger (2014) agrees that the liberalisation of the legal market may have the
advantage of making legal services more affordable and more accessible, but issues a
caveat:

We must be careful of invoking consumerism to justify legal advice and representation,

which is not properly independent, or which is second rate – or worse. As I have tried to
explain, access to justice cannot be equated to any other consumer commodity. Legal
advice and legal representation can only be properly given by those who are qualified to
give it.
14.7.2 The legal profession and technology

Technology is radically changing the way the legal profession works, particularly in the
larger solicitors’ firms, where innovative use of technology is leading to some routine
jobs being carried out more quickly and efficiently. Some examples of how law firms
can now use technology are to:
u retrieve publicly available data from public sources (e.g. from HM Land Registry)
u increase the speed of review of large numbers of documents
u file legal documents online (e.g. company documents at Companies House)
u use document automation.
Some law firms make use of technology such as machine learning and Artificial
Intelligence. The successful law firms of the future will probably be those that
understand these technological changes and can adapt their work practices
accordingly.
14.8 Legal training

Legal training for the legal professions in England and Wales is different for barristers
and solicitors. Barristers need to complete three stages of training: academic;
vocational; and pupilage/work-based training. The academic stage can be met by a law
degree, or by a non-law degree plus a law conversion course. From September 2021,
solicitors will sit a two-part national examination, the Solicitors Qualifying Examination
(SQE), before qualifying. Part 1 of the SQE does not require a law degree, only a degree
in any subject or a qualification or experience equivalent to a degree. Additionally,
work-based training is also required but this is quite flexible and can be completed
before sitting the SQE through a variety of routes.
Part 2 of the SQE assesses more practical legal subjects that might be encountered in
practice such as interviewing clients and drafting documents and advocacy.
For someone who wants to become a barrister, there are, from September 2020, a
number of ways of completing the vocational stage of training. This may be through a
one-year face-to-face taught course or one that combines some face-to-face teaching
with an online component or combined with a postgraduate law degree such as
an LLM. It is also necessary to attend 12 qualifying sessions. These are events of an
educational or collegiate nature arranged by or on behalf of an Inn of Court. The idea is
that students will benefit from the wisdom of experienced barristers if they sit among
them at mealtimes or are taught by them during educational events.
The professional stage for intending barristers involves finding a place in a set of
chambers to serve a ‘pupillage’. This work-based training is a one-year apprenticeship
in which they assist a qualified barrister.
The wide-ranging changes to the legal profession, the Bar Standards Board, the
Solicitors Regulation Authority and the Institute of Legal Executives taken place
been in response to a commissioned review into legal education and training. The
Legal Education and Training Review (LETR) reported in 2013. The review did not
recommend any wholesale reform of the training of solicitors and barristers. Some of
the recommendations that were made were to have prescribed learning outcomes
for the knowledge, skills and attributes expected of lawyers; a greater focus on legal
ethics, values and professionalism in legal training as well as other essential skills; and
to support alternative routes into the legal profession.

The changes in solicitor training have been more radical than those for barristers and,
although it is difficult to appraise changes that are yet to be effected, concerns have
been raised about the rigour of the new training routes and the impact of different
qualification routes on social mobility.
1. Why are legal professionals necessary for the rule of law?
2. What does it mean to say that England and Wales has a ‘divided’ legal
profession?
3. What is the traditional role of solicitors? What is the traditional role of

barristers?
4. What is a QC?
5. What is the regulatory body for solicitors, and that for barristers?
6. What is the role of the Legal Ombudsman?
7. What changes were made by the Legal Services Act 2007?
8. Explain in your own words what Alternative Business Structures are.
9. What are the reasons for saying that the solicitors’ and barristers’ professions
are moving closer together?
10. What is the Legal Education and Training Review?

Notes

15 The civil justice system
Contents
15.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
15.2 Distinctions between civil and criminal justice systems . . . . . . . . . 183
15.3 The scope of the civil justice system . . . . . . . . . . . . . . . . . . 184
15.4 What is the civil justice system for? . . . . . . . . . . . . . . . . . . 184
15.5 How does the civil court process work? . . . . . . . . . . . . . . . . . 185
15.6 Civil justice and the rule of law . . . . . . . . . . . . . . . . . . . . . 187
15.7 The challenge of providing accessible and affordable civil justice . . . . 188
15.8 Future reform of the civil justice system . . . . . . . . . . . . . . . . 190
15.9 ‘Transforming our justice system’ summary of reforms . . . . . . . . . 191

Learning outcomes
u distinguish between civil and criminal justice
u explain what the civil justice system is for, and the range of disputes that it deals
with
u explain how the civil justice system contributes to the rule of law
u describe the historic challenges of providing affordable and timely dispute
resolution through the civil courts
u explain the ways in which Lord Woolf attempted to reform civil justice
u explain the costs reforms recommended by Lord Justice Jackson.
Essential reading
¢ Genn, H. ‘What is civil justice for? Reform, ADR, and access to justice’, Yale Journal
of Law and the Humanities 24(1) 2012, p.397 (available in HeinOnline through the
Online Library; also available on the VLE).
¢ Lord Woolf ‘Access to justice’, interim report, June 1995, Chapter 3 ‘The
problems and their causes’, at https://webarchive.nationalarchives.gov.
uk/20060214223616/http://www.dca.gov.uk/civil/interim/chap3.htm
¢ Lord Woolf, ‘Access to justice’, ‘Overview’, July 1996, at https://webarchive.

nationalarchives.gov.uk/20060214041452/http://www.dca.gov.uk/civil/final/
overview.htm
Further reading
¢ Courts and Tribunals Judiciary, ‘Civil justice in England and Wales’, at
www.judiciary.uk/about-the-judiciary/the-justice-system/jurisdictions/
civil-jurisdiction/
¢ Sorabji, J. ‘Prospects for proportionality: Jackson implementation’, Civil Justice

Quarterly 32(2) 2013, pp.213–30 (available in Westlaw through the Online
Library).
¢ Professor Dame Hazel Genn ‘Online courts and the future of justice’, Birkenhead
Lecture 2017, 16 October 2017, at www.ucl.ac.uk/laws/sites/laws/files/
birkenhead_lecture_2017_professor_dame_hazel_genn_final_version.pdf
¢ Galanter, M. ‘Worlds of deals: using negotiation to teach about legal process’,

Journal of Legal Education 34 1984, p.268.
¢ The Right Honourable Sir Ernest Ryder, Senior President of Tribunals ‘The
modernisation of access to justice in times of austerity’, 5th Annual Ryder
Lecture: the University of Bolton, 3 March 2016, at www.judiciary.uk/wp-content/
uploads/2016/03/20160303-ryder-lecture2.pdf

Legal system and method 15 The civil justice system page 183
15.1 Introduction
The civil justice system is the means provided by the state for citizens and businesses
to peacefully resolve legal disputes and enforce their rights. When people refer to the
justice ‘system’ they are thinking not only about legal rules, but about the institutional
means for enforcing those rules and providing redress or punishment. The machinery of
the state justice system comprises the courts and their procedures, the judiciary and any
other institutions or processes involved in the delivery of justice. This chapter focuses on
the objectives, procedures and outcomes of the civil justice system and the way in which
the civil courts contribute to the rule of law and the ‘tranquillity of the state’.
15.2 Distinctions between civil and criminal justice systems

When we distinguish between civil and criminal justice ‘systems’ and processes, we
are referring to different bodies of legal rules, different courts and procedures, and
different agencies and legal professionals involved in the enforcement of the law
and the delivery of justice. It is worth stressing some basic distinguishing features
of the two justice systems which help to explain why the system for dealing with
civil disputes is rather different from the system that deals with the processing and
punishment of criminal offences, which is discussed later on in the module guide. Key
differences between the civil and criminal system include the following:
Objectives
Although both the civil justice and criminal justice systems have some deterrent
effect, the main purpose in the case of civil justice is redress, whereas in criminal
justice the main purpose is punishment.
Who initiates court proceedings?

In civil cases, proceedings will be started by the person who has suffered the wrong
– ‘the claimant’ – who brings the case against the ‘defendant’. Claimants can be
individuals, businesses or public bodies. Criminal cases are started by ‘the prosecutor’
(generally the state), who brings the case against the ‘defendant’ or ‘accused’.
The burden and standard of proof

In both civil and criminal proceedings, the burden of proof (i.e. responsibility for
proving the case) is on the person who initiates the action. In civil proceedings, the
claimant must prove the case. In criminal proceedings, the prosecution must prove
the case. The standard of proof (i.e. how sure the decision maker has to be about the
responsibility of the defendant) is different in civil and criminal cases. In civil cases,
the claimant must prove the case on ‘a balance of probabilities’, which means that
the evidence proves it is more likely than not that the defendant is liable. In criminal
trials, the prosecution must prove the case against the defendant ‘beyond reasonable
doubt’. The standard of proof is more demanding in criminal cases because of the
seriousness of the penalty and because of the stigma involved in a criminal conviction.
The decision maker

In most civil cases, decisions will be made by judges or magistrates and only rarely by
a jury (actions for defamation or wrongful arrest). In criminal cases, decisions about
guilt will be made by magistrates (summary offences) or by juries (indictable offences)
(see Chapters 18–20 of the module guide).
The type of penalty imposed

In a civil case, if the defendant is found ‘liable’ (i.e. responsible for the civil wrong),
the remedy awarded by the court to the claimant may be financial compensation,
an injunction or declaration. In a criminal case, the court gives a ‘verdict’, by which
the defendant will be found guilty or not guilty. If guilty, the judge will decide the
appropriate penalty, which could be a custodial sentence (time spent in prison), a
community sentence, a fine or a discharge.

15.3 The scope of the civil justice system

By comparison with the criminal justice system, the scope of the civil justice system
is very broad and complex. The range of claimants is enormously diverse and the
range of potential defendants is equally varied – including the state itself. Citizens and
businesses make use of the civil justice system when they are in dispute over legal
rights which they cannot solve by direct discussions or negotiation with the party
with which they are in dispute. Areas of law that come within the broad category
of ‘civil’ are contract law, the law of tort, land law, landlord and tenant, family law,
administrative law, company law and employment law. The range of issues that are
dealt with in the civil justice system has been described as follows:
The parts of the legal system that are not concerned with criminal law comprise a
rag-bag of matters and participants. There are disputes relating to the performance
or non-performance of contracts involving businessmen suing each other, individuals
suing businesses, and businesses suing individuals. There are claims for compensation
resulting from accidental injury in which individuals sue institutions. There is the use of
the courts by lenders who realize their security by evicting individual mortgage defaulters.
Civil justice also involves attempts by citizens to challenge decisions of central and local
government bureaucrats, a rapidly growing field that includes immigration, housing,
mental health, child welfare, and the like. In these situations individuals and groups
confront agencies of the state which can bring to bear apparently unlimited resources
to ward off claims. Finally, there are the acrimonious and often heart-breaking struggles
between men and women following the breakdown of family relationships as property
and children become the subject of legal dispute. All of these matters come within the
ambit of the civil justice system.
(Genn, H. ‘Understanding civil justice’, Current Legal Problems 50(1) 1997, pp.155–187, p.160)
Genn notes that the variety of cases and configurations of parties makes generalisation
difficult and presents major challenges for reform programmes. Practitioners and
government habitually distinguish between broad areas of activity in the civil
justice system, differentiating between civil and commercial cases (contract, tort,
property, insolvency), family cases (separation and divorce, child protection) and
administrative law (judicial review, actions against public bodies). As we will see in
the following sections, while the ambitions of accessibility, affordability, efficiency,
fairness and justice are the same in all areas of the civil justice system, achieving those
ambitions presents different challenges depending on both the nature of the dispute
(civil, commercial, family, administrative) and the types of parties involved (citizens,
businesses, state).
The public courts are the backbone of civil justice. The courts are provided by the state
to determine civil disputes by applying the common law or statute and developing
legal principles. There is also a range of private dispute resolution processes
(Alternative Dispute Resolution or ADR) which are available for citizens and business
to use as a supplement or as an alternative to formal court proceedings. Some of these
processes, such as arbitration, have been used for a long time to determine or resolve
commercial and other disputes. Other ADR processes, such as mediation, are of more
recent origin. These processes are confidential and the decisions are not made public.
ADR processes and their relationship to the public justice system are discussed in
Chapter 17.
15.4 What is the civil justice system for?

Civil justice serves a number of purposes. It has a ‘dispute resolution’ function which
benefits individuals by providing peaceful, authoritative and coercive termination of
disputes between citizens, companies and public bodies. But the civil justice system
also has a broader public benefit that reaches beyond individual dispute resolution.
The civil justice system supports social order and facilitates economic activity by
providing a legal framework in which business can be done. It also offers citizens the
means to enforce the duties of government and to check the exercise of power. The
civil justice system can therefore be seen as a public good.

In societies governed by the rule of law, the courts provide the community’s defence
against arbitrary government action; they promote social order and facilitate the peaceful
resolution of disputes. In publishing their decisions, the courts communicate and
reinforce civic values and norms. Most importantly, the civil courts support economic
activity. Law is pivotal to the functioning of markets. Contracts between strangers are
possible because rights are fairly allocated within a known legal framework and are
enforceable through the courts if they are breached. Thriving economies depend on a
strong State that will secure property rights and investment.
(Genn, 2012)
Civil justice is therefore more than just another consumer service providing private
benefits to litigants. This view of the justice system was confirmed by the Supreme
Court in R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51. Although
the precise facts of this case concerned employment tribunals, the Supreme Court
discussed the broad principles, on the basis that they are equally applicable to courts.
For Lord Reed (at para.67):
the idea that bringing a claim before a court or a tribunal is a purely private activity, and
the related idea that such claims provide no broader social benefit, are demonstrably
untenable.
An essential element in the courts performing these social functions is publicity

of proceedings and adjudication. Adjudication by judges in court is the public
determination of legal rights. The public function of the civil courts is to provide
authoritative statements of what the law is, who has rights and how those rights are
to be vindicated. The norms and behaviours contained within the law radiate out from
public statements in court and influence the behaviour of citizens in daily interactions.
Court procedure and judicial decisions are governed by well-developed due process
values. Public judgment is reached at the end of hearings in which an impartial
decision maker determines rights and responsibilities, fairly and effectively, after
hearing evidence and argument from both sides.
These due process features are not present in confidential, private dispute resolution
processes. It has been argued that the ability of disputing parties to make reasoned
arguments in public to an impartial judge is a manifestation of the rule of law. As the
legal philosopher Jeremy Bentham argued in the 19th century:
Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the
keenest spur to exertion, and the surest of all guards against improbity. It keeps the judge
himself, while trying, under trial.
This argument was recalled in R (on the application of C) v Secretary of State for Justice
[2016] UKSC 2, which considered the issue of whether there should be a presumption
of anonymity in civil proceedings, or in certain kinds of proceedings, or anonymity
orders on the facts of particular cases. Lady Hale recalled the role and function of the
principle of open justice (at para.1):
The principle of open justice is one of the most precious in our law. It is there to reassure
the public and the parties that our courts are indeed doing justice according to law. In
fact, there are two aspects to this principle. The first is that justice should be done in
open court, so that the people interested in the case, the wider public and the media can
know what is going on. The court should not hear and take into account evidence and
arguments that they have not heard or seen. The second is that the names of the people
whose cases are being decided, and others involved in the hearing, should be public
knowledge.
15.5 How does the civil court process work?

As we have seen, the civil justice system comprises a complex network of adjudicative
and dispute resolution processes which offer the means for peaceful resolution
of disputes around legal rights, entitlements and responsibilities. Many disputes
concerning legal rights – for example, over contracts or consumer transactions – are
generally resolved by direct negotiation between the parties to reach a settlement.

However, disputes that cannot be resolved directly between the parties can be
dealt with by legal determination on the merits in public by a judge or by some
private dispute resolution process, such as arbitration or mediation, or even by an
ombudsman (see Chapter 17). What the courts can do that private dispute resolution
cannot do is compel an unwilling defendant to engage with the dispute and order
them, if they are liable for breaching their legal obligation, to provide compensation
or redress to the claimant.
The public court system for dealing with civil disputes has a clear structure and
defined processes. Civil cases are generally dealt with in the County Court and High
Court. There are many steps that must be taken in English adversarial proceedings
before a dispute that has been notified to the court for determination by a judge is
ready to be dealt with at trial (the formal hearing of the case by a judge in court).
The process of dealing with a civil dispute through the civil courts is referred to as
‘litigation’ and the parties involved in the litigation are referred to as ‘litigants’.
The formal beginning of a civil court case is the ‘issue of proceedings’, in which
the person bringing the claim (the claimant) sets out their case and what it is they
are claiming from the court: generally monetary compensation. This is sent to the
person against whom the claim is being brought (the defendant), who must respond
with their ‘defence’ (i.e. saying why they do not believe that they are liable to pay
compensation). Once a defence has been received, the case will be managed by the
court and assigned to an appropriate procedure (one of three case management
‘tracks’ discussed later). Following allocation, the parties will collect their evidence
and prepare the case for trial. This process involves identifying the key facts that the
litigant wants to assert at trial and ensuring that there is documentary evidence, and
sometimes oral evidence, supporting those facts. When all of the evidence has been
collected, the case is ready to be heard by a judge at a trial or hearing. If the case
proceeds to trial, the litigants and their representatives will attend court. Each side
will present evidence to the judge and, after hearing the evidence, the judge will give
their decision and specify the remedy, if applicable, which will normally be monetary
compensation or ‘damages’.
15.5.1 ‘Out of court’ settlement

A critical feature of English adversarial civil court proceedings is that, despite the
fact that court proceedings have been issued, it is perfectly normal for the parties
to continue to negotiate in order to try and reach a settlement of the dispute. In the
vast majority of civil disputes, a settlement between the parties (often through their
lawyers) will be reached before the case ever reaches the stage of a trial before a judge.
So, as the diagram below shows, litigation and settlement negotiations generally
continue side by side (what has been referred to as ‘litigotiation’ by Galanter (1984,
p.268), and a trial will only take place if an ‘out of court settlement’ cannot be reached.
One might ask why court proceedings are issued if people continue to negotiate and
then settle their cases without legal determination by a judge. The answer is that the
issue of court proceedings forces defendants, who might not otherwise be prepared
to negotiate, to take the case seriously and enter into negotiations with the claimant.
The court framework and timetable can give an impetus to negotiations between the
parties which might otherwise stall.

Dispute arises
Settle Attempt to resolve through negotiation
Informal resolution not possible Negotiations

to settle the
dispute can
Settle Advice from advice agency or lawyer continue up
to the
Court proceedings issued moment of
trial
including
Settle Defence entered using
mediation
or other
Court allocates to procedural track
ADR process
Settle Case management conference
Settle Collect evidence and prepare for trial
Trial
Figure 15.1 Diagram of civil justice process
15.6 Civil justice and the rule of law

The ability of people to make use of the law to protect their legal rights and hold
others to their legal responsibilities underpins the rule of law. We have seen that one
of Lord Bingham’s ‘essential ingredients’ for the rule of law is a well-functioning civil
justice system. He said that, in enabling citizens to assert their substantive civil rights
against the state itself, the civil justice system plays a ‘truly essential role’ in furthering
the rule of law. In Lord Bingham’s definition, a well-functioning civil justice system is
one that provides the means for resolving civil disputes ‘that do not involve excessive
cost or delay’.
The World Justice Project (see discussion in Chapter 4), which assesses the extent to
which countries around the world have systems that meet the criteria for the rule of
law, explains the importance of a well-functioning civil justice system in a rule of law
society as follows:
In a rule of law society, ordinary people should be able to resolve their grievances and
obtain remedies in conformity with fundamental rights through formal institutions of
justice in a peaceful and effective manner, rather than resorting to violence or self-help.
According to the World Justice Project, the factors regarded as fundamental to a well-
functioning civil justice system are that:
u people can access and afford civil justice
u civil justice is free of discrimination
u civil justice is free of corruption
u civil justice is free of improper government influence
u civil justice is not subject to unreasonable delay
u civil justice is effectively enforced
u alternative dispute resolution mechanisms are accessible, impartial and effective.
These are ambitious expectations and there are few countries around the world
whose civil justice systems meet those criteria. The 2019 World Justice Project country
index shows that the UK ranks 18th in the world (out of 126 countries) for the quality of
its civil justice system.

The 2014 World Justice Project report noted that, although many countries around the
world face challenges in meeting rule of law principles in general, problems with civil
justice are one of the greatest rule of law challenges for western Europe and the USA.
The World Justice Project argued that generalised delays in the delivery of civil justice
constitute the greatest weakness in the region. Equal access to justice for marginalised
populations is also problematic. It commented that:
All around the world, people’s ability to use legal channels to resolve their disputes is
often impeded by obstacles in judicial decision making, or simply lack of knowledge,
disempowerment, and exclusion. These problems, which are not restricted to developing
countries, call for more work to ensure that all people have the opportunity to resolve
their grievances effectively, impartially and efficiently through the civil justice system.
15.7 The challenge of providing accessible and affordable civil

justice
In England and Wales, there have been long-standing concerns about the expense,
delay and complexity of the civil justice process. These concerns go back at least to
the time of Dickens, who satirised the courts in his novel Bleak house in 1852. Expense
represents a major barrier to access to justice and it arises principally from the cost
of paying fees for legal advisers. Lawyers help litigants to understand their legal rights
and assist in commencing and advancing court proceedings in order to prepare for
judicial determination at a trial.
Slow and expensive procedures seem to affect common law civil justice systems
around the world. This is reflected in the World Justice Project rule of law index, which
shows that many jurisdictions struggle to meet the basic standards of accessibility and
affordability. The time and cost involved in collecting evidence, and then preparing a case
for trial, are linked to common law adversarial procedures. But why are the procedural
rules so important? The rules of court are bound up with the idea of procedural fairness –
that a person has notice of the case against them and a proper opportunity to answer the
case, and that a court’s decision will be based on ‘truth’ because the information relevant
to the decision has been provided to the court. In this way, procedural rules are directly
linked to the concept of due process and reflect a sense of justice.
However, it is necessary to find a balance between fair procedures and affordable

processing of cases. There seems to be general agreement that a critical challenge
in solving the problems of cost and delay in civil justice is the need to simplify
procedures. Many of the recent civil justice reforms in England and Wales and other
common law countries have been directed at this objective in order to increase
efficiency and reduce the length and cost of court proceedings.
15.7.1 Lord Woolf and the access to justice reforms

During the course of the 20th century, there were numerous reviews and reforms
aimed at making civil justice quicker and cheaper for litigants. The most significant
reforms followed a fundamental review of civil justice entitled ‘Access to justice’,
conducted between 1994 and 1996 by a senior judge, Lord Woolf, in the context of
debate about the increasing cost of litigation and declining availability of legal aid.
Following a relatively rapid review, Lord Woolf published an interim report in June 1995
and a final report in July 1996, accompanied by new Civil Procedure Rules.
Lord Woolf believed that the problems of cost, complexity and delay were linked, and
that they were largely the result of excessively adversarial behaviour by lawyers in
the course of litigation. In his view, such tactics subverted the intention of procedural
rules, creating unnecessary costs for litigants. Lord Woolf’s solution was to shift
responsibility for the management of civil cases from the parties to the court and
to allocate cases to procedural ‘tracks’, so that simple cases would be dealt with
by swift and straightforward procedures, and more complex procedures would be
reserved for the most legally difficult or most expensive cases. This was the concept of
proportionality which characterised Lord Woolf’s reforms.

Another important objective of Lord Woolf’s reforms was to promote early settlement
of cases. He argued that disputing parties should only use the courts as a last resort
and should use private ADR processes, in particular mediation, to settle disputes at the
earliest opportunity. ADR is discussed in detail in Chapter 17.
15.7.2 The Civil Procedure Rules (CPR)

Lord Woolf’s final report was accompanied by a new procedural code that applied to
both the county courts and the High Court. The new Civil Procedure Rules (CPR) came
into force in April 1999. The rules were designed to be accessible. Latin terms were
removed. The rules are divided into ‘Parts’ and accompanied by practice directions.
Practice directions are sets of rules and procedures which tell parties what the court
expects of them and what might happen if they do not comply with various rules
or court orders. The procedures that are to be followed by disputing parties before
proceedings are issued in court are contained in ‘pre-action protocols’. The CPR and
practice directions are constantly being updated and are published on the Ministry of
Justice website, at www.justice.gov.uk/courts/procedure-rules/civil/rules
The CPR has an ‘overriding objective’. In the original version of the CPR, the overriding
objective was to ‘deal with cases justly’. This was amended in April 2013 to emphasise
the importance of controlling the expense of litigation. The text of CPR Part 1.1 explains
that the new procedural code has the overriding objective of ‘enabling the court to
deal with cases justly and at proportionate cost’. Dealing with a case justly and at
proportionate cost includes cutting back on the expense and dealing with the case in
ways that are proportionate to the amount of money involved, the importance of the
case, the complexity of the issues and the financial position of each party.
Under the CPR, judges are responsible for actively managing cases. This involves
encouraging cooperation, identifying key issues that need to be investigated,
encouraging disputing parties to use ADR and helping the parties to settle. There is an
emphasis on efficiency and settlement.
Every case is allocated to one of three procedural tracks. The tracks for cases are:
1. The small claims track (CPR Part 27) – for cases with a claim value not exceeding
£10,000 (£1,000 for personal injury and housing cases). This is the most informal
procedure, designed to be speedy and inexpensive. Under the CPR, the court may
adopt any method of proceeding at a hearing that it considers to be fair. Strict rules
of evidence do not apply and the court can limit cross-examination. Despite the
informality, the court must give reasons for its decision.
2. The fast track (CPR Part 28) – for cases with a claim value of £10,000 to £25,000.
Fast track cases have a strict timetable. The trial lasts for no longer than one day
and oral expert evidence is limited.
3. The multi-track (CPR Part 29) – for all other cases. These are the most complex and
high-value cases. They are subject to active case management and pre-trial review
by the court.
15.7.3 The continuing problem of legal costs

Evaluations of the Woolf reforms suggest that they were partially successful in
promoting cooperation and settlement and reducing delay. However, the critical
failure has been in the impact on costs. Only three years after their implementation,
the government’s own evaluation reported anecdotal evidence that costs had
increased following the reforms. By 2008, there was so much concern about rising
litigation costs that the then Master of the Rolls, Lord Clarke, commissioned a
thorough review of litigation costs to be conducted by a Court of Appeal judge, Lord
Justice Jackson.
The Jackson costs review analysed large amounts of litigation costs data and
concluded, in 2010, that, although there were several causes of rising costs, one of
them had been the Woolf reforms. Lord Justice Jackson said that the additional work

required by the Woolf reforms, particularly pre-action protocols, had increased

procedural complexity. The more work the rules require to be done, the more it will
cost. There was now more work for lawyers to do at an early stage in preparing cases
and this had caused a ‘front-loading’ of legal costs.
Lord Justice Jackson made a number of significant recommendations designed to

reduce the costs of litigation. His recommendations were implemented in April 2013.
There has been considerable controversy over these reforms and it remains unclear
whether they will achieve the objective of controlling litigation costs. The Law Society
has argued that the changes have proved inconsistent, time-consuming and costly,
and that they are likely to decrease rather than increase access to justice:
The sheer tidal wave of reforms designed to reduce solicitors’ costs has also had the effect
of reducing access to justice, increasing the number of litigants in person and swelling the
already overburdened court waiting lists.
(‘The impact of the Jackson reforms on costs and case management’, Civil Justice Council
conference, 21 March 2014: written submission of the Law Society, at
www.judiciary.uk/wp-content/uploads/JCO/Documents/CJC/Publications/Law+Society.pdf )
In 2016, Lord Justice Jackson indicated that the next step in the implementation of
costs reform would be the introduction of an extensive regime of fixed costs for civil
litigation. He was then commissioned by the Lord Chief Justice and the Master of the
Rolls to undertake a review of fixed recoverable costs. The report of this review, which
was published in July 2017, concluded that:
The only effective way to control the costs of civil litigation is to do so in advance ... In my
view, the time has now come to expand the scope of fixed recoverable costs. This is the
major piece of unfinished business left over from my previous review. At the same time,
work must be done to streamline the litigation process and to control the amount of work
which litigants and their lawyers are required to do.
(Lord Justice Jackson, ‘Review of civil litigation costs: supplemental report, fixed
recoverable costs, July 2017, at www.judiciary.uk/wp-content/uploads/2017/07/fixed-
recoverable-costs-supplemental-report-online-2-1.pdf)
Lord Justice Jackson argued that fixed recoverable costs were necessary because
parties to litigation need certainty. They need to know at the outset what costs they
will recover if they win and what costs they will pay out if they lose. Controlling the
costs of litigation and providing clarity as to each party’s financial commitment are
vital elements in achieving access to justice.
15.8 Future reform of the civil justice system

There have more recently been a number of reports and reform proposals relating
to the civil justice system. This will potentially bring about a considerable amount of
change over time to the way the system operates.
In July 2016, Lord Justice Briggs published his final report on the Civil Courts Structure
Review (available at www.judiciary.uk/wp-content/uploads/2016/07/civil-courts-
structure-review-final-report-jul-16-final-1.pdf). An interim report had already been
published in December 2015. One of the most important recommendations of the
Review was that there should be an Online Court. This would be a new court, designed
to be used by people with minimum assistance from lawyers, with its own set of user-
friendly rules. The report noted that feedback from the interim report consultation
was supportive of a new Online Court, which litigants could use without lawyers.
However, there had been several criticisms of the idea, among them concerns that:
u the Online Court would provide second-class justice to those wrongly viewed as
having less important claims
u a large number of people would be denied access to justice by the requirement to

use online technology
u the exclusion of lawyers would be a cause of injustice in many cases, and

u online justice threatens a loss of open justice and transparency.
The final report recommended that the Online Court should eventually be made
compulsory as the forum for cases within its jurisdiction, save where otherwise
recommended, and subject to the power of the court to transfer cases to a
higher court on grounds of complexity or public importance. Some of these
recommendations are being taken further by the government, as discussed below.
There were further important reform proposals in the Review, including the
creation of case officers, to be trained and supervised by judges, to do some of the
administrative work currently performed by judges.
15.9 ‘Transforming our justice system’ summary of reforms

In September 2016, the Ministry of Justice published a summary of reforms and a
consultation paper entitled ‘Transforming our justice system’ (available at https://
assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_
data/file/553261/joint-vision-statement.pdf). This set out details of reforms to civil,
criminal and family courts, and to tribunals, with the aim of ensuring a modern
justice system.
The aims of the reforms were that the justice system should be:
u Just: decisions and outcomes are fair, the judiciary are supported by processes that
are modern, transparent and consistent, and like cases are treated alike. A strong
judiciary and meritocratic legal professions draw on the widest available pool of
talent, to maintain public confidence and strengthen the rule of law.
u Proportionate: the cost, speed, complexity, and degree of adversarial protection

make sense and are appropriate to the nature and value of the dispute at issue. An
effective system will save people time and money, and shrink the impact of legal
proceedings on their lives.
u Accessible: the system is affordable, intelligible and available for use by all,
convenient for those who cannot easily attend in person and supportive of those
not comfortable with the law or technology.
The summary document contains many reforms to the ways courts and tribunals
work. Some of the main ones that relate to the justice system as a whole are:
u case officers, working under judicial supervision, will be used for routine tasks,
instead of these being carried out by judges
u more decisions will be made on the papers: that is, without an oral hearing
u there will be more ‘virtual’ hearings, using telephone or video conferencing,

instead of all hearings taking place in a court building
u more cases should be settled out of court, by the parties settling disputes
themselves.
More processes will take place online, for example, probate applications and
managing divorce proceedings.
Particular reforms are suggested for the civil justice system. These include a new
process for resolving many disputes entirely online, building on the Civil Courts
Structure Review carried out by Lord Justice Briggs, discussed above. Fixed recoverable
costs (see the discussion earlier in this chapter) will be extended to as many civil cases
as possible, and there will be a limited level of legal costs recoverable. The government
has said that it will bring forward legislation, where necessary, to enable these reforms.
As part of its overall reform programme, the government has also closed many
of the buildings previously used for court and tribunal hearings. In February 2016,
the Ministry of Justice announced that, on the basis that many court premises are
underused and expensive to maintain, a decision had been made to close 86 court and
tribunal buildings.

The government programme of courts and tribunals modernisation has been criticised
by the House of Commons Public Accounts Committee, which stated that it had ‘little
confidence that HMCTS (Her Majesty’s Courts and Tribunals Service) can successfully
deliver this hugely ambitious programme to bring the court system into the modern
age’, and that the government had ‘not adequately considered how the reforms will
impact access to, and the fairness of, the justice system for the people using it, many of
whom are vulnerable’.
Self assessment questions

1. Name five differences between the civil justice system and the criminal justice
system.
2. What are the public functions of the civil justice system?
3. Who initiates proceedings in civil cases?
4. What is the overriding objective of the new Civil Procedure Rules?
5. What are the characteristics of proceedings on the small claims track?
6. What is the concept of ‘proportionality’ in the new Civil Procedure Rules?
7. Did the Woolf reforms succeed in reducing the cost of litigation?
8. What were the aims of the Jackson reforms?
9. What are the main changes proposed to the civil justice system by the Civil
Justice Structure Review and the ‘Transforming our justice system’ reform
summary?
10. What criticisms could be made of an Online Court?

16 Access to civil justice and legal aid
Contents
16.1 What is access to justice? . . . . . . . . . . . . . . . . . . . . . . . . 195
16.2 Access to civil justice and legal aid . . . . . . . . . . . . . . . . . . . 195
16.3 The history of legal aid . . . . . . . . . . . . . . . . . . . . . . . . . 195
16.4 The effects of LASPO 2012 . . . . . . . . . . . . . . . . . . . . . . . . 196
16.5 Post-implementation review of LASPO . . . . . . . . . . . . . . . . . 198
16.6 Is there a right to legal aid in civil cases? . . . . . . . . . . . . . . . . 199
16.7 Access to civil justice and the rise of litigants in person . . . . . . . . . 201

Learning outcomes
u explain why access to civil justice is essential to the operation of the rule of law
u describe changes made to legal aid by the Legal Aid, Sentencing and Punishment
of Offenders Act 2012
u describe the relationship between access to civil justice and legal aid
u appreciate the challenge of unrepresented parties in civil and family courts.
Essential reading
¢ Wilson, S., H. Rutherford, T. Storey and N. Wortley English legal system. (Oxford:
Oxford University Press, 2018) third edition [ISBN 9780198808152] Chapter 11
‘Access to justice’ (available on the VLE).
¢ House of Commons Justice Committee ‘Impact of changes to civil legal aid under
Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012’, Eighth
Report of Session 2014–15, 12 March 2015, at https://publications.parliament.uk/
pa/cm201415/cmselect/cmjust/311/311.pdf
¢ Ministry of Justice ‘Post-implementation review of LASPO’, 7 February 2019, at

www.gov.uk/government/publications/post-implementation-review-of-part-
1-of-laspo; and ‘Legal support action plan’, 7 February 2019, at www.gov.uk/
government/publications/legal-support-action-plan
¢ Genn, H. ‘Do-it-yourself law: access to justice and the challenge of self-

representation’, Civil Justice Quarterly 32(4) 2013, p.411–44 (available in Westlaw
through the Online Library).
¢ House of Commons Library Briefing Paper ‘Litigants in person: the rise of the self-
represented litigant in civil and family cases in England and Wales’, 14 January
2016, at https://researchbriefings.parliament.uk/ResearchBriefing/Summary/
SN07113

¢ R v Lord Chancellor, ex p Witham [1998] 2 WLR 849, [1998] QB 575.
¢ R (Unison) v Lord Chancellor [2017] UKSC 51.
¢ Airey v Ireland 32 Eur Ct HR Ser A (1979): [1979] 2 EHRR 305 (available at

https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-57420%22]}).
Further reading
¢ Lord Neuberger ‘Access to justice: welcome address to Australian Bar
Association Biennial Conference’, 3 July 2017, at www.supremecourt.uk/docs/
speech-170703.pdf
¢ Sir Henry Brooke ‘The history of legal aid – 1945 to 2010’, 16 July 2016, at https://
sirhenrybrooke.me/2016/07/16/the-history-of-legal-aid-1945-to-2010/
¢ Civil Justice Council ‘Access to justice for litigants in person (or self-represented
litigants)’, November 2011, at www.judiciary.uk/wp-content/uploads/2014/05/
report-on-access-to-justice-for-litigants-in-person-nov2011.pdf
¢ Judiciary of England and Wales ‘The Judicial Working Group on litigants in

person: report’, July 2013, at www.judiciary.gov.uk/wp-content/uploads/JCO/
Documents/Reports/lip_2013.pdf
¢ Judicial College ‘Equal treatment bench book’, February 2018, Chapter 1

‘Litigants in person and lay representatives’, at www.judiciary.uk/wp-content/
uploads/2018/02/ETBB-February-2018-v15.08.18.pdf

Legal system and method 16 Access to civil justice and legal aid page 195
16.1 What is access to justice?

In order for citizens and businesses to protect their legal rights, they must be able to
access the justice system. Effective access to justice requires:
u awareness of rights, entitlements, obligations and responsibilities
u awareness of the procedures that are available for the resolution of disputes about
legal rights, entitlements and responsibilities
u ability to access redress systems and participate effectively in the process, so

that the legal merits of cases are properly presented and understood by the
decision-maker.
However, there can be many barriers that deter or frustrate parties attempting to
resolve their legal disputes, including not being aware of rights, not knowing where
to go for advice and help, not being able to pay for expert advice and representation
and not being in a position to understand and navigate the complexities of the legal
system.
There is a strong consensus that the civil justice process is difficult for ordinary people
to understand. The law itself can be complicated, and generally citizens have no
experience of courts and their processes, and find them bewildering. The result is that
for most citizens some sort of advice and legal representation is not only helpful but
necessary in order for them to bring or defend a case in court effectively.
Although this chapter will focus in particular on the effect of legal aid, there are many
other potential barriers to access to justice, including a lack of awareness of legal
rights, physical access to courts and tribunals, and distrust or unfamiliarity with the
legal system. Access to affordable legal advice and legal representation are, however,
perhaps the most important reasons which impact on an ability to access justice.
16.2 Access to civil justice and legal aid

Substantive legal rights are of little value to citizens if they do not know their rights
and feel unable to use the justice system. Governments committed to the rule of law
accept that it is necessary to provide help for people who need access to the courts
to enforce or defend their rights, but who cannot afford to pay for legal advice and
representation. The provision of legal services at public expense, generally referred
to as ‘legal aid’, is an acknowledgement of the difficulties that the public often face
in using the legal system without advice and advocacy. The provision of legal aid is an
expression of government commitment to the rule of law, which promises equality
before the law and equal access to justice.
16.3 The history of legal aid

England and Wales has had a legal aid system since the end of the Second World
War. It was established by the Legal Aid and Advice Act 1949 and was designed to
provide ‘legal advice for those of slender means and resources, so that no one will
be financially unable to prosecute a just and reasonable claim or defend a legal
right’. Between its establishment in 1949 and the beginning of its decline in the
mid-1980s, the legal aid system in England and Wales developed into one of the most
comprehensive schemes in the world, covering advice and representation for most
civil and criminal cases in all courts up to the House of Lords/Supreme Court. By the
mid-1980s, most of the population could benefit from legal aid, and many lawyers
in private practice provided legal aid services. In the 1990s, the scheme expanded to
include not-for-profit advice agencies and Law Centres. These new providers of legal
and quasi-legal services tended to provide specialist advice and representation for
social welfare issues.
By the mid-1990s, however, the cost of the English legal aid system had reached
around £2 billion. Much of that expenditure was for criminal cases, but a significant

proportion funded advice and representation for citizens involved in civil disputes,
family disputes and those wishing to challenge decisions of government and public
bodies. Since that time successive governments have modified and reduced the scope
of the legal aid system, particularly in relation to civil and family cases.
The most recent and dramatic change to legal aid was made by the Legal Aid,
Sentencing and Punishment of Offenders Act 2012 (LASPO), which came into effect
in April 2013. To save money on the justice system budget, the government removed
from the scope of the legal aid system most civil and family cases, including many
cases that affect the most vulnerable groups in society. Around 623,000 people each
year involved in legal problems and disputes who had previously been helped through
the legal aid system are no longer able to access this assistance. These are people with
common, everyday legal problems, such as debt, issues with the benefits system, poor
treatment by employers or family breakdown and related difficulties.
16.4 The effects of LASPO 2012

The effect of LASPO 2012 on the providers of legal advice for civil and family law issues,
particularly not-for-profit advice agencies, has been very significant. The LASPO
changes have led to a cutting back of services and the closure of advice centres. It
was thought that the reduction in the availability of advice and representation would
lead to two different outcomes. The first was that many people would not attempt to
enforce their rights or pursue remedies or entitlements. They would simply ‘lump it’
and live with whatever the consequences might be. This is the most basic barrier to
access to justice.
It is known from legal needs studies (such as Genn, 1999) that a significant proportion
of the population faced with everyday civil justice problems and disputes either do
nothing at all or abandon attempts to seek redress. We also know that those on low
or no incomes are disproportionately likely to do nothing to enforce or defend their
rights, often feeling powerless and helpless. Research has also shown that there is a
link between unresolved legal problems, poor health and increased criminality.
The second consequence is that it was considered that those people who wished
to pursue their legal rights in court would have to do so without legal advice or
representation (as litigants in person or ‘LIPs’) unless they are able to pay for legal
services. The increase in LIPs in civil and family courts is discussed later on in this
chapter.
16.4.1 Evaluation of LASPO 2012

Since the Act was passed, there has been widespread criticism of its effects by public
bodies, legal professionals, non-governmental organisations and others.
House of Commons Justice Committee inquiry

Following the implementation of LASPO in 2013, the House of Commons Justice
Committee (an all-party committee responsible for scrutinising the work of the Ministry
of Justice) set up an inquiry to assess the broad effect of the changes to civil legal aid
introduced by LASPO. The Committee took written and oral evidence from practitioners,
advice workers and the judiciary, and published its final report in March 2015.
Referring to access to justice as an essential element of the rule of law, the Committee
stated that it had undertaken the inquiry to examine the success of the legal aid
reforms in protecting access to justice while addressing issues of cost, and to make
recommendations where it believed access to justice had been compromised.
The conclusions of the Justice Committee were highly critical of LASPO, finding that it had
failed to meet the majority of its key objectives and that it had had the effect of harming
access to justice. The government had failed to anticipate the impact of the reforms
because it did not carry out sufficient research before implementing them.

The Committee’s conclusions were:
u Since the reforms came into effect there has been an underspend in the civil legal
aid budget because the government had not ensured that everyone eligible for
legal aid is able to access it.
u LASPO has had a harmful effect on the legal aid market and providers of publicly
funded legal services, leading to the cutting and significant downsizing of
departments and centres dealing with such work. There are now concerns about
the sustainability of legal aid practice in future.
u There has been a substantial increase in litigants in person as a result of the

government’s reforms. Litigants in person are increasingly people with no choice
other than to represent themselves and who may therefore have some difficulty in
effectively presenting their cases. The result is that the courts are having to expend
more resources to assist litigants in person and require more funding to cope, and
the government is having to fund more direct assistance for litigants in person.
u Also indicative of the lack of evidence on the effects of the reforms has been the
sharp reduction in the use of mediation, despite the government’s estimates that
it would increase. The Committee found that this was because the government did
not appreciate what makes people seek mediation.
The Committee’s report was also highly critical of the lack of research undertaken
prior to the implementation of the reforms and the failure of the government to
anticipate the consequences of the changes or the extent to which failure to provide
legal aid has led to costs being shifted on to other public services:
The Ministry’s significant savings are potentially undermined by its inability to show
that it has achieved value for money for the taxpayer. The Ministry’s efforts to target
legal aid at those who most need it have suffered from the weakness that they have
often been aimed at the point after a crisis has already developed, such as in housing
repossession cases, rather than being preventive. There have therefore been a number
of knock-on costs, with costs potentially merely being shifted from the legal aid budget
to other public services, such as the courts or local authorities. This is another aspect of
the reforms about which there is insufficient information; the Ministry must assess and
quantify these knock-on costs if it is to be able to demonstrate it has met its objective of
better value for the taxpayer.
House of Commons Public Accounts Committee inquiry

In February 2015, the effects of LASPO were also assessed by the House of Commons
Public Accounts Committee, an all-party committee responsible for scrutinising the
value for money of public spending and the delivery of public services (see www.
publications.parliament.uk/pa/cm201415/cmselect/cmpubacc/808/80802.htm). The
Public Accounts Committee’s conclusions were that:
u The Ministry of Justice did not have robust evidence for the changes made. It still
has little understanding of why people go to court and how and why people access
legal aid.
u The government’s approach to implementing the reforms has inhibited access

to mediation for family law cases. Mediations in family law cases fell by 38 per
cent in the year after the reforms as the government did not understand that
removing legal aid would mean that this would reduce the referrals by solicitors to
mediation.
u The government does not know whether people who are eligible for legal aid are
able to get it.
u The complexity of the justice system may be preventing people who are no longer
eligible for legal aid from securing access to justice; many people will not be able
to represent themselves in court.
u The government cannot manage the impact of the increase in litigants in person,
because it still does not understand the impact that they have on the courts
service. Litigants in person may be placing additional pressure on the courts.

u The quality of face-to-face legal aid is unacceptably low, and the Legal Aid Agency
does not understand the link between the price it pays providers and the quality of
the advice.
u The government does not know whether the reduction in spending on civil legal
aid is outweighed by additional costs in other parts of the public sector as a result
of the reforms. The cuts made to legal aid may simply have been shifted to other
areas of the public sector.
Further reports
There have been a considerable number of other reports which have evaluated the
effects of the legal aid reforms. You can have a look at one or two of these reports to
get a flavour of the criticisms of LASPO by professional bodies and non-governmental
organisations.
The Low Commission concluded that the reductions in legal aid have ‘destabilised and
reduced the advice and legal support sector at a time of increased need. As a result,
instead of saving money, the cutbacks are very likely to end up costing more elsewhere
in the system.’ (See www.lag.org.uk/about-us/policy/the-low-commission-200551)
Similarly, the Bach Commission report argued that there is a crisis in the justice
system as a result of LASPO, and recommended a new Right to Justice Act to secure
effective access to justice (see www.fabians.org.uk/wp-content/uploads/2017/09/Bach-
Commission_Right-to-Justice-Report-WEB.pdf).
The Law Society (the professional body for solicitors) carried out a review of LASPO
four years after its measures came into force (see https://www.lawsociety.org.uk/en/
topics/research/laspo-4-years-on). Its main findings were that:
u legal aid is no longer available for many of those who need it
u those eligible for legal aid find it hard to access
u wide gaps in provision are not being addressed
u LASPO has had a wider and detrimental impact on the state and society.
And the Bar Council (the professional body for barristers) carried out a review in
October 2018, including a survey of barristers (see www.barcouncil.org.uk/resource/
bar-council--laspo-has-failed.html). It found that:
u more than 91 per cent of respondents reported the number of individuals

struggling to get access to legal advice and representation had increased or risen
significantly
u 91 per cent of respondents reported a significant increase in the number of

litigants in person (members of the public attempting to represent themselves
in court) in family cases; and 77 per cent of respondents reported a significant
increase in the number of litigants in person in civil cases
u 77 per cent saw a significant delay in family court cases because of the increase in
litigants in person
u almost 25 per cent of respondents have stopped doing legal aid work
u 48 per cent of barristers surveyed do less legal aid work than before.
16.5 Post-implementation review of LASPO

For a long time, many commentators had called on the government to carry out a
post-implementation review of LASPO. A post-implementation review is a process
carried out after legislation has come into effect to monitor and evaluate whether
the legislation has met its intended objectives. The post-implementation review into
LASPO was finally, after several delays, published in February 2019.
Although accepting in principle the importance of people being able to access the
justice system, the review argued that legal aid must be sustainable in the current

difficult economic circumstances. The review offers a small amount of extra funding in
some limited areas, with the majority of the government’s proposed solutions to legal
aid being presented in a Legal Support Action Plan accompanying the review. In the
Action Plan, the government puts forward a number of ideas based on the principle
that people should receive help with their problems before legal advice or litigation
is required. The Lord Chancellor states that ‘for too long our approach to supporting
access to justice has been concentrated on funding for court disputes’, and that ‘early
intervention is key and it is upon this that our new vision for legal support is founded’.
Measures put forward in the Action Plan include piloting the expansion of legal aid for
face-to-face early legal advice in a specific area of social welfare law, and reinstating
immediate access to face-to-face legal advice in discrimination, debt and special
educational needs cases. A number of additional measures are also proposed, such
as investing money in technology to deliver legal support services, enhancing the
support offered to litigants in person and launching a campaign to improve awareness
of how people can access legal support. The scheme for Exceptional Case Funding,
which allows for legal aid where there would otherwise be a breach of human rights
or EU law, will be simplified. Most of the focus is, however, on heading off problems
before they reach the stage of litigation or even lawyers and legal advice.
The government’s review has met with a mixed response. The Bar Council has stated
that it is ‘disappointed’ with the review, saying that the extra funding for legal aid
promised by the government is only a ‘drop in the ocean’ given the huge impact LASPO
has had on restricting access to justice. The Law Society is more optimistic, and hopes
that the changes proposed will make it easier for people to qualify for legal aid. The
Chair of the House of Commons Justice Committee has welcomed some aspects of the
review, but was concerned that proposals for further reviews and pilot evaluations
could be seen as postponing meaningful action being taken. The Justice Committee
Chair also questioned the government’s use of the term ‘legal support’, which suggests
something that falls short of the provision of legal advice.
16.6 Is there a right to legal aid in civil cases?

The right of effective access to court has been recognised as a fundamental human
right by the common law. For example, in Witham [1998] 2 WLR 849. Sir John Laws held:
It seems to me, from all the authorities to which I have referred, that the common law
has clearly given special weight to the citizen’s right of access to the courts. It has been
described as a constitutional right, though the cases do not explain what that means. In
this whole argument, nothing to my mind has been shown to displace the proposition
that the executive cannot in law abrogate the right of access to justice, unless it is
specifically so permitted by Parliament; and this is the meaning of the constitutional right.
(p.585)
In the recent landmark case of R (Unison) v Lord Chancellor [2017] UKSC 51, the Supreme
Court reaffirmed that there is a constitutional right to access to justice, and that this
right is inherent in the rule of law. This case was not about LASPO or legal aid, but
about a similar issue: namely, fees that the government had introduced for claimants
in employment tribunals. The Lord Chancellor had, by secondary legislation, required
most people who wanted to use these tribunals to bring a claim in employment law to
pay considerable fees, where no fees had been payable before. It was argued that this
was unlawful and hindered access to justice. In giving the judgment of the court, Lord
Reed said (at paras.66 and 68):
The constitutional right of access to the courts is inherent in the rule of law … At the heart
of the concept of the rule of law is the idea that society is governed by law. Parliament
exists primarily in order to make laws for society in this country. Democratic procedures
exist primarily in order to ensure that the Parliament which makes those laws includes
Members of Parliament who are chosen by the people of this country and are accountable
to them. Courts exist in order to ensure that the laws made by Parliament, and the
common law created by the courts themselves, are applied and enforced. That role
includes ensuring that the executive branch of government carries out its functions in

accordance with the law. In order for the courts to perform that role, people must in
principle have unimpeded access to them. Without such access, laws are liable to become
a dead letter, the work done by Parliament may be rendered nugatory, and the democratic
election of Members of Parliament may become a meaningless charade. That is why the
courts do not merely provide a public service like any other.
Lord Reed went on to state that the right of access to justice, administered promptly
and fairly, had long been recognised in case law. The limitation of this right by
secondary legislation could only be effected by clear statutory words, and the clear
authorisation of Parliament. In the present case, the charging of fees in employment
tribunals was found to impede access to justice, as many people could not reasonably
afford to pay them.
In the case of R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, Lord
Bingham said that the common law right of effective access to justice comprises three
distinct rights:
1. the right of access to a court
2. the right of access to legal advice
3. the right to communicate confidentially with a legal adviser.
The right of access to legal advice has therefore been recognised as a fundamental
right under the common law.
Whereas Article 6 of the Human Rights Act 1998 guarantees the provision of legal
aid for citizens accused of criminal offences (Article 6(3)(c)), there is no equivalent
provision in Article 6(1), so there is no general ECHR right to legal aid in civil
proceedings. As far back as 1979, the European Court of Human Rights considered the
question of whether legal representation was a fundamental prerequisite of access
to the court in the case of Airey v Ireland 32 Eur Ct HR Ser A (1979): [1979] 2 EHRR 305.
The question was whether Mrs Airey had been denied access to the court because
she could not afford representation and was not able to secure legal aid. The Irish
Government argued that, because she was free to represent herself, she did have
access to the court. The European Court of Human Rights held that the purpose of
the Convention was to guarantee rights that are ‘practical and effective’ rather than
‘theoretical or illusory’, particularly in relation to access to the courts and the right to a
fair trial. The Court held, however, that legal aid in civil proceedings was not generally
a requirement of access to justice. Although there might be circumstances where it
was necessary because of the complexity of court procedures or of the case, a state
might afford access either through providing legal representation or, alternatively,
simplifying procedure. The Court held (at para.26):
[W]hilst Article 6 para.1 (art. 6-1) guarantees to litigants an effective right of access to the
courts for the determination of their ‘civil rights and obligations’; it leaves to the State
a free choice of the means to be used towards this end. The institution of a legal aid
scheme … constitutes one of those means but there are others such as, for example, a
simplification of procedure.
As a result of the changes to legal aid under LASPO 2012, and subsequent further
proposed changes, it has been argued that there is a common law right to legal aid.
The view of the government, however, is that while it accepts that there is a common
law right of access to the court, this is not the same as a common law right to legal aid.
The government said in 2014 that:
We do not consider that there is any basis at common law that a litigant is in general
entitled to a state subsidy in respect of lawyers’ fees. The legal aid reforms do not involve
any fundamental right of access to the courts, rather the question of whether a person
should receive legal aid funding.
(Ministry of Justice ‘Government response to the Joint Committee on Human Rights:

the implications for access to justice of the government’s proposals to reform legal
aid’, February 2014, at www.parliament.uk/documents/joint-committees/human-rights/
government-response-to-legal-aid-report.pdf)

16.7 Access to civil justice and the rise of litigants in person

Although most people need and prefer to have the benefit of legal advice before
making or defending a claim in court, there is a right in all English civil and criminal
proceedings for an individual to appear in court without representation. This
right exists in most common law jurisdictions, although it does not exist in many
civil law jurisdictions, where litigants are required to have legal representation in
court proceedings. In the French legal system, although legal representation is not
compulsory in all courts, a lawyer is compulsory in the Tribunal de grande instance
(which hears civil cases of greater value and importance) and the Cour d’assises (which
deals with more serious crimes) in most circumstances. In these courts, litigants are
not permitted to represent themselves.
Self-representation in court has recently been increasing in common law jurisdictions

around the world – from England and Wales to Hong Kong, Australia, the USA and
Canada.
A Canadian study in 2013 found that, in some courts, at least 40 per cent of litigants in
family cases and more than 70 per cent of litigants in civil cases were self-represented
(Treasurer’s Advisory Group on Access to Justice ‘The national self-represented litigants
project: identifying and meeting the needs of self-represented litigants: final report’,
May 2013, at https://representingyourselfcanada.com/wp-content/uploads/2016/09/
srlreportfinal.pdf). In the light of the increasing number of LIPs in the Canadian court
system and the difficulties faced by such litigants, in the case of Pintea v Johns 2017
SCC 23, the Supreme Court of Canada endorsed the Statement of Principles on Self-
represented Litigants and Accused Persons, which had been drawn up by the Canadian
Judicial Council. These Principles recognise that:
Judges, the courts and other participants in the justice system have a responsibility to
promote opportunities for all persons to understand and meaningfully present their case,
regardless of representation.
In England and Wales, concern about the increase in litigants in person (LIPs) has
significantly intensified with the implementation of LASPO 2012, since it is now
impossible for many people involved in civil and family disputes to obtain legal aid
support. Reliable data are not easily available, but in 2014 the National Audit Office
reported a 30 per cent increase across all family court cases in which neither party had
legal representation (National Audit Office ‘Implementing reforms to civil legal aid’,
20 November 2014, at www.nao.org.uk/wp-content/uploads/2014/11/Implementing-
reforms-to-civil-legal-aid1.pdf).
In a speech in 2013, the Lord Chief Justice, Lord Thomas, said that the growth in the
number of LIPs is one of the 10 most significant justice system issues, and that the
increase was caused by the loss of legal aid and the rise in litigation costs. He said that
LIPs were having a serious impact on courts, and that this was a global phenomenon
(‘Justice in one fixed place or several?’, Birkenhead Lecture, 21 October 2013, at judiciary.
uk/wp-content/uploads/JCO/Documents/Speeches/lcj-birkenhead-lecture-21102013.pdf).
16.7.1 Challenges for litigants in person

The problem for LIPs is that it is difficult for people without legal or specialist training
to understand the law and court processes. Adversarial court proceedings, with the
emphasis on presentation and challenge of evidence through cross-examination,
operate with the expectation that litigants will be represented and that their cases will
be advocated before an impartial and largely passive judge, who listens and then gives
their decision based on the evidence.
Research evidence suggests that LIPs have difficulty understanding the law, difficulty in
collecting relevant evidence, difficulty complying with procedural rules, and difficulty
in expressing themselves and presenting their case in court. This results in challenges
for judges, and may mean that LIPs are less likely to succeed with their case than if they
had been represented. Other problems are that cases become much longer, which in
turn causes severe backlogs for the courts. Judges may be put in the difficult position

of trying to compensate for the lack of legal representation of litigants in person by

having to give them additional support, thus potentially putting judges in a position of
conflict of interest.
In the context of family courts, Lord Justice Ryder has explained the challenge of the
increasing numbers of LIPs:
[LIPs] will not have had the benefit of legal advice to identify the merits and demerits
of their proposals … they will not have had identified to them the issues the court can
address before arrival at the court door … they will arrive without professionally advised
applications seeking permission to file evidence … Many will have no idea what a
conventional court process entails and some will have difficulty in understanding its rules.
(‘Judicial proposals for the modernisation of Family Justice’, 2012)
In Re R (A Child) [2014] EWCA Civ 597, Lady Justice Black explained the additional
burden placed on the court by unrepresented parties, who appear with disorganised
documents and without a clear understanding of the issues to be decided:
This case is illustrative of an increasing problem faced by this court. More and more
litigants appear in front of us in person. Where, as here, the appellant is unrepresented,
this requires all those involved in the appeal process to take on burdens that they would
not normally have to bear. The court office finds itself having to attempt to make sure
that the parties to the litigation are notified of the appeal because litigants in person do
not always know who should be served ... The bundles that the court requires in order to
determine the appeal are often not provided by the litigant, or are incomplete, and proper
papers have to be assembled by the court, not infrequently at the request of the judges
allocated to hear the case when they embark upon their preparation for the hearing just
days before it is due to start. The grounds of appeal that can properly be advanced have
to be identified by the judge hearing the permission application and the arguments in
support of them may have to be pinpointed by the court hearing the appeal … The court
has no extra resources to respond to these added challenges.
(at paras.6–7)
The National Audit Office report ‘Implementing reforms to civil legal aid’ (referred to
above) sets out the challenges that LIPs face. According to this report, LIPs:
u are less likely to settle cases outside of court hearings
u are likely to have more court orders and interventions in their cases
u are less likely to have the knowledge and skills required to conduct their cases
efficiently
u create additional work for judges and court staff, which can make court-listing
processes less efficient.
The recent government post-implementation review of LASPO (see Section 16.4.1)

noted the concerns over litigants in person that had been raised by stakeholders who
contributed to the review, in particular the concern that the increase in litigants in
person is changing the way the justice system operates. Because litigants in person
are not familiar with the law and with court procedures, judges may have to provide
advice that could, if not handled sensitively, undermine their impartiality. Although
accepting that litigants in person require more support, the review did not consider
that the court system cannot function with the increased presence of litigants in
person, and stated that access to a lawyer is not always the correct or most affordable
answer.
16.7.2 Increasing access to civil justice for litigants in person

A number of official reports have made recommendations for how to provide
assistance to the increasing number of LIPs in navigating the adversarial court system.
A Civil Justice Council report in 2011 recommended a holistic approach, focusing on
early information and advice, demystification of the law, simplification of the court
process, case management by judges and more public legal education for citizens. In

2013, a Judicial Working Group on LIPs concluded that it was necessary for courts to
modify adversarial procedures and adopt a more inquisitorial approach when dealing
with LIPs. They also recommended allowing lay advocates to address the court, and
making greater use of what are known as McKenzie friends – someone who is not a
lawyer, but who accompanies a LIP to a court hearing in order to help by taking notes,
helping to organise the documents and quietly making suggestions about what to do.
The ‘Equal treatment bench book’, guidance issued by the Judicial College, suggests
ways in which judges can assist litigants in person during hearings – for example, by
ensuring that:
u the process is explained to them in a manner that they can understand
u they have access to appropriate information (e.g. the rules, practice directions and
guidelines – whether from publications or websites)
u they are informed about what is expected of them in ample time for them to
prepare and comply
u wherever possible, they are given sufficient time for their particular needs.
The increased use of McKenzie friends is not uncontroversial. McKenzie friends were
traditionally a family member or friend of the litigant in person. Now, however, they
may also be either a volunteer attached to a charity or a fee-charging professional.
Despite the fact that some will be acting as professionals, unlike solicitors and
barristers, there is no legal regulation of McKenzie friends. They do not have to be
legally qualified or follow a professional code of practice. The benefits of the increased
use of McKenzie friends are that they can improve access to justice, especially where
the party on the other side is legally represented. Professional McKenzie friends can
help the litigant in person to navigate the court system and thus assist the court
with the challenges posed by LIPs. The risks are that a McKenzie friend, who will not
necessarily have any legal training, may give poor legal advice, and the litigant in
person has little means of redress, owing to it being an unregulated profession. There
is also a risk that McKenzie friends may step outside their proper role or exaggerate
the extent of the assistance they can legally provide, for example, by conducting
litigation as an unauthorised person.
In February 2016, the Lord Chief Justice and the Judicial Executive Board (JEB) published
a consultation on reforming the courts’ approach to McKenzie friends. Following the
consultation responses, which were published in February 2019, the Lord Chief Justice
has asked a Judicial Working Party to consider the matter further. The consultation
report document noted that:
The JEB remain deeply concerned about the proliferation of McKenzie Friends who in
effect provide professional services for reward when they are unqualified, unregulated,
uninsured and not subject to the same professional obligations and duties, both to their
clients and the courts, as are professional lawyers.
(see www.judiciary.uk/wp-content/uploads/2016/02/MF-Consultation-LCJ-Response-Final-
Feb-2019.pdf)
In terms of moves to improve public legal education to assist litigants in person, the
Bar Council and senior members of the judiciary have each written a handbook for
people bringing cases in court without legal representation. The complexity and
length of the guide written by the judiciary shows the difficulties faced by litigants in
person in navigating the law and court procedure (see www.judiciary.uk/wp-content/
uploads/JCO/Documents/Guidance/A_Handbook_for_Litigants_in_Person.pdf).
16.7.3 A more inquisitorial approach?

It was explained in Chapter 1 that English legal proceedings are based on adversarial
procedures. This means that the parties are responsible for preparing their case and
collecting their evidence. At the trial of the case in court the parties’ advocates will
present their clients’ respective arguments in a sort of contest before a judge (or judge
and jury). The role of the judge is to remain relatively passive during proceedings, ensure

that procedures are followed and at the end of the hearing or trial give their decision
based on a view of the legal merits of the parties in relation to the facts presented. This
is in contrast to the inquisitorial style of legal proceedings, which is followed in other
jurisdictions (generally civil law jurisdictions), in which the judge takes a much more
active role in the proceedings, for example, through the questioning of witnesses.
A number of senior judges have also argued that in order for courts to deal with
increasing numbers of LIPs they will have to adopt a more inquisitorial or quasi-
inquisitorial approach. This is reflected in case law that sets out the approach that
courts must adopt.
In Mole v Hunter [2014] EWHC 658 (QB), it was held that courts have sufficient
flexibility to adapt proceedings so that justice is done for LIPs. Tugendhat J explained
the procedure he had adopted in the case, a complex defamation case conducted
between two litigants in person (at para.111):
Because both sides were litigants in person, I conducted the hearing by asking first Ms
Hunter and then Ms Mole about each of the matters complained of in the counter claim. I
then gave each of them an opportunity of asking questions of the other. Ms Mole chose to
ask no questions. I then went through the chronology of events as I understood them to
be, inviting each of them to correct or complement the understanding I had formed on my
own reading of the papers and to make their submissions. Before doing this I invited each
party for their consent to the procedure I proposed to adopt. I also indicated that I also
proposed to hear both applications before me before making a ruling on either of them.
Tugendhat J argued that judges are already making adjustments to the way
proceedings were run so that the process is more inquisitorial, for the benefits of
litigants in person. They are doing so under the court’s general case management
powers in CPR 3.1(2)(m) (see www.justice.gov.uk/courts/procedure-rules/civil/rules/
part03#3.1).
There are clear signs that there is a shift towards a more inquisitorial system in
particular in the family courts for litigants in person. In the cases of Re C (A Child) [2013]
EWCA Civ 1412, Re W (A Child) [2013] EWCA Civ 1227 and Re D (A Child) [2014] EWCA Civ 315,
Lord Justice Ryder explained that, when dealing with LIPs, it is the responsibility of the
judge to adopt an inquisitorial approach, so that they can identify the relevant issues
in the case. He said in Re D (at para.28):
… the process of fact finding in family proceedings is quasi-inquisitorial. The welfare

of a child may sometimes require a judge to make decisions about facts and/or value
judgments that are not asked for by either party. A judge cannot shrink from doing so. That
is his function. He must identify such questions and where necessary decide them …
In March 2014, the then Lord Chief Justice, Lord Thomas, signalled that the shift to
more inquisitorial processes already taking place within the family justice system
might have to be extended to the other parts of the civil justice system, saying that ‘we
have to keep an open mind even on radical options’. However, Lord Thomas sounded a
cautionary note, acknowledging that many questions remained:
Questions such as how is the justice system to operate an inquisitorial process effectively
need to be considered. What effect would that have on the ability to give other cases their
fair share of the court’s time and resources? What consequences would it bring to, for
instance, the efficient use of judicial time? Would an increased workload mean we would
need more judges, or need to introduce a new cadre of junior judges? What effect would
it have on the structure of our courts, and courts administration? What would be its cost?
(Lord Thomas ‘Reshaping justice’, 3 March 2014, at www.judiciary.uk/wp-content/uploads/

JCO/Documents/Speeches/lcj-speech-reshaping-justice.pdf, at para.31)
Recent cases suggest, however, that the courts will not show unlimited leniency to
litigants in person, where this would give them an unfair advantage. In Barton v Wright
Hassall [2018] UKSC 12, the Supreme Court held that a litigant in person should not be
given special dispensation when interpreting the Civil Procedure Rules. The applicant,
who was a litigant in person, had served a claim form required for court procedure by

the CPR by email on the defendant’s solicitors, without first checking that they were
prepared to accept service by that means, as he was required to do under the CPR.
The Supreme Court stated that, unless the court rules are particularly inaccessible or
obscure, it is reasonable to expect litigants in person to familiarise themselves with
the rules which apply to any step they are about to take in court proceedings. Lord
Sumption, giving the majority judgment of the court, stated (at para.18) that:
In current circumstances any court will appreciate that litigating in person is not always
a matter of choice. At a time when the availability of legal aid and conditional fee
agreements have been restricted, some litigants may have little option but to represent
themselves. Their lack of representation will often justify making allowances in making
case management decisions and in conducting hearings. But it will not usually justify
applying to litigants in person a lower standard of compliance with rules or orders of the
court … The rules provide a framework within which to balance the interest of both sides.
That balance is inevitably disturbed if an unrepresented litigant is entitled to greater
indulgence in complying with them than his represented opponent.
1. In what way might access to justice be seen as essential to the rule of law?
2. What are the requirements of effective access to justice?
3. Why might citizens find it difficult to access the civil courts?
4. What were the main changes to legal aid introduced by LASPO 2012?
5. What are the criticisms that have been made of LASPO 2012?
6. What is the key principle behind the post-implementation review of LASPO, and
what changes are proposed as a result of the review?
7. What are the arguments that there is a common law right to legal aid?
8. Why has there been an increase in litigants in person in the courts?
9. What are the challenges for LIPs and judges conducting hearings with LIPs?
10. How are judges modifying the conduct of hearings to accommodate LIPs?

How do you account for the increase in litigants in person in courts in England and
Wales, and what measures are being discussed to meet the challenges that they
pose to the administration of justice?


This question potentially raises a wide range of issues that you could discuss:
u Who are litigants in person?
u Has there been an increase?
u Why has there been an increase?
u What challenges do LIPs pose to the administration of justice?
u What measures are being discussed to meet those challenges?
u How effective are the measures likely to be?
You could structure your essay as follows.
1. Who are litigants in person?
Give a definition: people appearing in courts and tribunals without

representation from a barrister, solicitor or other competent representative.
2. Has there been an increase?
Evidence from a range of sources suggests there has been an increase.

The greatest increase has been in family cases, but there has also been an
increase in civil courts and in tribunals (quote LCJ, saying that the rise in LIPs
is one of the 10 greatest challenges facing the justice system; the National
Audit Office report on LASPO quoting statistics).
3. Why has there been an increase?
There have always been some LIPs. But the current increase is attributed
to changes to legal aid introduced by LASPO. Give a brief account of the
categories of case excluded from the scope of legal aid (i.e. welfare cases
such as benefits, employment, education, non-asylum immigration, etc.) and
private family law cases (arrangements over children and property)). Quote
Justice Committee report and other reports on impact of LASPO.
4. What challenges do LIPs pose to the administration of justice?
The context is adversarial procedures, assumption of representation and

passive judges, complexity of law and court procedure. LIPs have difficulty
advocating (judicial proposals for modernisation of family justice, National
Audit Office 2014 report, etc.) so may lose their case and justice is not done.
Judges have difficulty managing without assistance from lawyers (e.g. Re R (A
Child) [2014] EWCA Civ 597; Mole v Hunter [2014] EWHC 658 (QB)). This adds to
their workload and makes it difficult to find facts.
5. What measures are being discussed to meet those challenges?
A holistic approach (Civil Justice Council report, 2011). Provide early advice
through self-help toolkits, information booklets, volunteers at court.
Simplify procedures. Judges to adopt more inquisitorial approach in court
(e.g. Ryder LJ and family cases: Re C (A Child) [2013] EWCA Civ 1412, Re W (A
Child) [2013] EWCA Civ 1227 and Re D (A Child) [2014] EWCA Civ 315; Judicial
Working Group report, 2013). Training of judges to include dealing with LIPs
and how to adopt inquisitorial approach. Allow wider range of people to
advocate (McKenzie friends – though these are controversial); student pro
bono work; Personal Support Unit.
6. Conclusion: How effective are measures likely to be?
Growth of LIPs found in many common law jurisdictions. Global

phenomenon largely attributed to reduction in public funding of legal
services (post-global financial crisis austerity measures). Presents serious
problems in terms of access to justice. Can self-representing parties obtain
justice? The measures proposed are likely to help, particularly if there
is collaboration between volunteer organisations, students, etc. Role of
unqualified advocates (McKenzie friends) raises issues in terms of quality
control, but in the absence of any more public funding there may be no
alternative.

17 Alternative dispute resolution (ADR)
Contents
17.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
17.2 Main types of ADR processes . . . . . . . . . . . . . . . . . . . . . . 209
17.3 The modern development of mediation . . . . . . . . . . . . . . . . 211
17.4 The common law on mediation . . . . . . . . . . . . . . . . . . . . . 212
17.5 The debate on mandatory mediation . . . . . . . . . . . . . . . . . . 213
17.6 Evaluation of ADR . . . . . . . . . . . . . . . . . . . . . . . . . . . 214
17.7 Disappearing trials, privatisation of justice and the rule of law . . . . . 215

Learning outcomes
u describe in outline the main types of ADR processes
u describe the approach of the courts to mediation and costs sanctions
u explain the benefits and disadvantages of private dispute resolution processes
u discuss the extent to which mediation should be compulsory.
Essential reading
¢ Cownie, F. A. Bradney and M. Burton English legal system in context. (Oxford:
Oxford University Press, 2013) sixth edition [ISBN 9780199656561] Chapter 11
‘Alternative dispute resolution’ (available on the VLE).
¢ Prince, S. ‘ADR after the CPR: have ADR initiatives now assured mediation an
integral role in the civil justice system in England and Wales?’ in Dwyer, D. (ed.)
The Civil Procedure Rules ten years on. (Oxford: Oxford University Press, 2009)
[ISBN 9780199576883] (available on the VLE).
¢ Genn, H. ‘Why the privatisation of civil justice is a rule of law issue’, 36th FA Mann
Lecture, 19 November 2012, at www.ucl.ac.uk/laws/sites/laws/files/36th-f-a-
mann-lecture-19.11.12-professor-hazel-genn.pdf
¢ Menkel-Meadow, C. ‘Is the adversary system really dead? Dilemmas of legal

ethics as legal institutions and roles evolve’, Current Legal Problems 57(1) 2004,
pp.85–115 (available on the VLE).
¢ Civil Justice Council ‘ADR and civil justice’, CJC ADR Working Group: final report,
November 2018, at www.judiciary.uk/wp-content/uploads/2018/12/CJC-ADR-
Report-FINAL-Dec-2018.pdf
¢ Civil Justice Council ‘ADR and civil justice’, CJC ADR Working Group: interim
report, October 2017, at www.judiciary.uk/wp-content/uploads/2017/10/interim-
report-future-role-of-adr-in-civil-justice-20171017.pdf

¢ Dunnett v Railtrack plc [2002] EWCA Civ 2003.
¢ Halsey v Milton Keynes General NHS Trust [2004] EWCA (Civ) 576.
¢ PGF II SA v OMFS Company [2013] EWCA Civ 1288.
¢ Thakkar v Patel [2017] EWCA Civ 117.
Further reading
¢ Lord Justice Jackson, R. ‘Review of civil litigation costs: final report’, Courts and
Tribunals Judiciary (updated December 2009), at www.judiciary.uk/wp-content/
uploads/JCO/Documents/Reports/jackson-final-report-140110.pdf, Chapter 36
‘Alternative dispute resolution’.
¢ Menkel-Meadow, C. ‘Whose dispute is it anyway? A philosophical and

democratic defense of settlement (in some cases)’, Georgetown University
Law Journal 83 1995, pp.2663–696 (available in HeinOnline through the Online
Library).
¢ Kritzer, H.M. ‘Disappearing trials? A comparative perspective’, Journal of

Empirical Legal Studies 1(3) 2004, pp.735–54, p.752 (available in HeinOnline
through the Online Library).
¢ Ahmed, M. ‘Implied compulsory mediation’, Civil Justice Quarterly 31(2) 2012,

pp.151–75 (available through Westlaw in the Online Library).
¢ European Union website information about ADR/ODR, at https://ec.europa.eu/

info/live-work-travel-eu/consumers/resolve-your-consumer-complaint_en

Legal system and method 17 Alternative dispute resolution (ADR) page 209
17.1 Introduction
‘Alternative dispute resolution’ (ADR) is an umbrella term which is generally applied
to a range of dispute resolution methods other than court proceedings, including
negotiation, mediation, conciliation, arbitration, adjudication, early neutral evaluation
and ombudsmen schemes. The most commonly used processes are arbitration,
mediation, conciliation and ombudsmen. With the exception of arbitration and
ombudsmen services, most forms of ADR are species of facilitated settlement. Some
argue that arbitration should not properly be regarded as an ADR process because
ADR should not include this kind of adjudicative procedure. This shows that what is
included under the umbrella term of arbitration is a matter of contention.
A critical feature of all forms of ADR is that they are dispute resolution processes
conducted in private. Both the process and outcome of the procedures are generally
confidential to the parties (with the exception of ombudsmen decisions). Like other
types of out-of-court settlement, the terms of mediated agreements are not publicly
known.
We have already seen that the Woolf Report and then the Civil Procedure Rules noted
the importance of ADR in the civil justice system, to promote the early settlement
of disputes. This was reinforced by the Jackson Review of Civil Litigation Costs, which
noted the vital role of ADR in reducing the costs of disputes. There is a contrary view,
however, that including ADR in the litigation process sometimes increases costs,
in particular if the ADR procedure does not result in a settlement and the matter
proceeds to court.
17.2 Main types of ADR processes

There is a broad range of ADR processes. These encompass adjudicative processes,
such as arbitration, that have some similarities to litigation, as they involve a set
procedure and result in a decision being handed down and actually imposed on the
parties. At the other end of the scale are processes that are relatively informal, such as
a negotiation between lawyers representing the parties to the dispute.
The different ADR processes do not form part of a comprehensive or cohesive

system. There is a patchwork of different providers, and different routes for people
seeking resolution of a dispute. For example, mediation services may be provided by
courts, commercial providers, not-for-profit providers, solicitors’ firms or barristers’
chambers.
Arbitration
This is the private, confidential determination of a dispute by an independent third
party. The arbitrator makes a decision according to law. The arbitrator’s decision,
known as an award, is legally binding and can be enforced through the courts. An
arbitration hearing may involve the use of an individual arbitrator or a tribunal, which
can consist of any number of arbitrators, although some legal systems insist on an
odd number to avoid a tie. Arbitration is used in a wide range of disputes, including
shipping, insurance and international commercial disputes.
Early neutral evaluation

This is a private process, in which a neutral legal professional (often a retired judge)
hears a summary of each party’s case and gives a non-binding assessment of the
merits. This can then be used as a basis for settlement or for further negotiation.
Expert determination
Again, this is a private process, in which an expert neutral third party is appointed
to decide the dispute. The expert’s decision is binding on the parties. This is another
example of an adjudicative process.

Mediation
This is one of the most popular ADR processes, in which a neutral third party assists
the disputing parties to reach a settlement. It is essentially a facilitated settlement.
The process is voluntary and non-binding, although any binding agreement reached
can be enforced in contract. Although, in facilitative mediation, the mediator will not
give a view of the strengths or weaknesses of the parties’ cases, parties can choose to
have an ‘evaluative’ mediation, where the mediator gives an assessment of the legal
strength of each party’s case. Mediation is used in a wide range of disputes, including
commercial disputes, family disputes, neighbour disputes and employment disputes.
Mediation is distinguished from litigation processes by virtue of its focus on problem-
solving, rather than an emphasis on strict legal rights. It is often said to be capable of
producing ‘win/win’ situations, rather than the ‘win/lose’ situations characteristic of
court adjudication.
Mediation is said by its supporters to be better than litigation for the resolution of
disputes because: it is cheaper and quicker; it is a flexible procedure that can achieve
settlement in a wide range of disputes; it is capable of achieving creative solutions
that would not be available in court adjudication; it focuses on commercial realities
of disputes rather than legal technicalities; it can repair damaged relationships; it can
reduce conflict; and it is less stressful for parties than court procedures. Some of these
claims for mediation are discussed further below.
Conciliation
This is a facilitated settlement process that is often confused with mediation. It is,
in fact, very similar, but in conciliation the third party ‘neutral’ takes a more active
role, deliberately suggesting ways in which the parties might reach a settlement.
Conciliation is used very commonly in employment disputes.
Med–Arb
This is a hybrid process which combines mediation and arbitration. The parties
attempt to reach a mediated settlement, but if, after an agreed length of time,
no settlement can be achieved, the mediator will arbitrate the dispute and give a
decision.
Ombudsmen
These are independent dispute and complaint handlers who investigate and rule
on complaints from members of the public about poor administration or service by
government departments, and about public and private service delivery.
Some ombudsmen use mediation as part of their dispute resolution procedures.

Ombudsmen make a decision about complaints and can award compensation and
make recommendations about changes to public and private services. Some of the
largest private ombudsmen services are the Financial Ombudsman, the Housing
Ombudsman and the Legal Ombudsman, who deals with complaints about legal
services. Before using an ombudsman service, a complainant must usually first
exhaust all internal complaints mechanisms of the relevant organisation. In general,
ombudsmen can only make recommendations, not binding decisions.
Ombudsmen are, in numerical terms, very significant in dispute resolution. The Civil
Justice Council reported (in its interim report) that, in the year 2016-17, the Financial
Ombudsman Service handled 1.6 million complaints and investigated 341,000 new
cases. They settled just under 450,000 cases. The Housing Ombudsman Service
received just under 15,000 enquiries and made determinations in just under 1,000,
resolving the rest through other interventions.
Online dispute resolution (ODR)

Online resolution of disputes could potentially include both online resolution as part
of the court system and online forms of alternative dispute resolution.

In Chapter 15, the use of online dispute resolution as part of the court system was
discussed in the context of the Online Court. One of the main recommendations of the
Civil Courts Structure Review carried out by Lord Justice Briggs was the introduction of
an Online Court, and this was taken up in the summary of reforms in ‘Transforming our
justice system’.
ODR can also be used in the context of alternative dispute resolution. There is a new
EU Online Dispute Resolution Platform, which can be used in cross-border consumer
cases. Consumers can use the online platform to submit a complaint against a trader
to be resolved by a registered ADR provider. This system of ADR was introduced into
the UK in July 2015 by the Alternative Dispute Resolution for Consumer Disputes
(Amendment) Regulations 2015 (SI 2015/1392).
17.3 The modern development of mediation

Although arbitration and conciliation have been used in England as alternative
techniques for the resolution of civil and commercial disputes since at least the 1950s,
significant contemporary interest in ADR and, in particular, mediation can be traced to
the publication of the Woolf reports in 1995 and 1996. Lord Woolf heavily encouraged
the use of mediation as a means of parties resolving disputes rather than using court
processes. Lord Woolf promoted mediation because, in his view, it would save court
resources, and because he believed that it would be cheaper for litigants than going to
court and would offer quicker results.
In his 1995 interim report on access to justice (see Chapter 15), Lord Woolf stated that
the courts had an important role in providing information about ADR and encouraging
its use in appropriate cases. This encouragement was strengthened in the 1996 final
report, which stated that:
[T]he court will encourage the use of ADR at case management conferences and pre-trial
reviews, and will take into account whether the parties have unreasonably refused to
try ADR.
This meant that if a litigant unreasonably refused to try ADR the judge would be able to
impose a financial penalty when the case came to trial. So, for example, a litigant who
won their case might not recover their legal costs from the losing side, even though this
is the normal rule in litigation (the losing party pays the winning party’s legal costs). The
CPR (Part 26) included provision for the parties or the court to ‘stay’ (interrupt) court
proceedings in order for the parties to seek to settle their dispute by ADR.
Following the lead provided by Lord Woolf, in the late 1990s and early 2000s,
enthusiastic judges in courts around England and Wales collaborated with mediation
providers to set up court-attached mediation schemes offering no- or low-cost, time-
limited mediation, held on court premises for litigants who had already commenced
court proceedings. The first and largest of these court-based mediation schemes was
established in a county court trial centre in central London (Central London County
Court) in 1996. Although the courts administered the schemes, the mediations
themselves were undertaken initially on a pro bono basis by trained mediators.
Several of these schemes continued until around 2007, and evaluation research was
commissioned by the government. Research findings showed that, although the
voluntary uptake of mediation offers was very low (around 5 per cent), those people
who had volunteered to try mediation to settle their dispute generally liked the
process, particularly the informality of mediation and lack of legal technicality. About
two-thirds of mediations resulted in settlement and there was some evidence that
legal costs had been saved. However, research also showed that where mediation
did not result in settlement, costs and delay were increased. There was also evidence
that the mediation process depended critically on the skill of mediators, who are
unregulated, and that the process was capable of magnifying power imbalances
between the parties, and may therefore not be suitable for matters in which there is
such a power imbalance (for example, in some divorce proceedings).

17.4 The common law on mediation

Despite the enthusiasm for mediation shown by some sections of the judiciary in
the late 1990s and early 2000s, the voluntary uptake of mediation and use of these
court-attached mediation schemes between 1996 and 2001 remained low. Since 2002,
there have been a number of landmark legal cases in which the senior judiciary have
clarified the approach of the courts to the role of mediation in civil and commercial
disputes.
In Cowl v Plymouth City Council [2001] EWCA Civ 1935, Lord Woolf held that, as a matter
of law, parties are required to consider ADR before starting legal proceedings,
particularly where public money is involved. This was followed, more significantly, by
Dunnett v Railtrack plc [2002] EWCA Civ 2003, in which the Court of Appeal held that
Railtrack’s refusal to contemplate mediation prior to the appeal (after it had been
suggested by the Court) was sufficient to deny them their legal costs. The message
of Dunnett v Railtrack was reinforced in the later case of Hurst v Leeming [2001] EWHC
1051 (Ch), in which Mr Justice Lightman held that it is for the judge to decide whether
a refusal to mediate was justified. Although judges will accept valid reasons for not
wanting to proceed with ADR, such reasons must be fully justifiable if the party wishes
to avoid being penalised by the court.
In 2004, the Court of Appeal gave guidance to lower courts in the case of Halsey v
Milton Keynes General NHS Trust [2004] EWCA (Civ) 576. Lord Justice Dyson held there
should be no presumption in favour of mediation and that there needed to be a real
prospect of mediation succeeding before someone should be denied their legal costs.
The guidance in Halsey was applied in the case of Burchell v Bullard [2005] EWCA Civ 358.
In PGF II SA v OMFS Company [2013] EWCA Civ 1288, the Court of Appeal made it clear
that silence in the face of an invitation to participate in ADR is, as a general rule, of
itself unreasonable conduct, which can lead to a costs sanction. It is necessary for the
parties to engage with the ADR process. However, in Gore v Naheed [2017] EWCA Civ 369,
Patten LJ took a slightly different view, commenting on the decision in PGF II that:
Briggs LJ emphasised the need, as he saw it, for the courts to encourage parties to embark
on ADR in appropriate cases and said that silence in the face of an invitation to participate
in ADR should, as a general rule, be treated as unreasonable regardless of whether a refusal
to mediate might, in the circumstances, have been justified. Speaking for myself, I have
some difficulties in accepting that the desire of a party to have his rights determined
by a court of law in preference to mediation can be said to be unreasonable conduct
particularly when, as here, those rights are ultimately vindicated. But, as Briggs LJ makes
clear … a failure to engage, even if unreasonable, does not automatically result in a costs
penalty. It is simply a factor to be taken into account by the judge when exercising his
costs discretion.
(para.49)
The facts in Thakkar v Patel [2017] EWCA Civ 117 were different; in this case, the
defendants did not refuse to mediate, but they delayed until eventually the claimants
lost confidence in the whole ADR process. In giving the Court of Appeal’s judgment,
Lord Justice Jackson said that ‘in a case where bilateral negotiations fail but mediation
is obviously appropriate, it behoves both parties to get on with it. If one party
frustrates the process by delaying and dragging its feet for no good reason, that will
merit a costs sanction.’
In its report on ADR and civil justice, the Civil Justice Council commented that,
although the general view of consultees was that costs sanctions were still the
appropriate way to encourage parties to undertake mediation, the approach to this
under the common law entailed some difficulties. The precise guidance from the
Court of Appeal had become somewhat confused, in particular in relation to different
approaches in PGF II and Gore v Naheed. Many consultees also considered that the
approach in Halsey, particularly with its focus on the merits or perceived merits of a
case, was now out of date and not in accordance with current ADR practice.

17.5 The debate on mandatory mediation

Government policy since the late 1990s has favoured the promotion of mediation for
civil, commercial and family disputes. It has also encouraged the use of mediation in
employment disputes and even judicial review cases. The government believes that
the widespread use of mediation would reduce expenditure for the justice system
and legal aid and that it would save legal costs for litigants. In the recent debates
about reductions in legal aid, for civil and family cases, the government has promoted
mediation as a preferable alternative to court proceedings. In a consultation paper
prior to the introduction of LASPO 2012, the government argued that the court system
needs to ‘focus more on dispute resolution … for the majority of its users, rather than
the loftier ideals of “justice”, that cause many to pursue their cases beyond the point
that it is economic for them to do so’. The vision for the new system is one ‘where
many more avail themselves of the opportunities provided by less costly dispute
resolution methods, such as mediation – to collaborate rather than litigate’.
The government has been in favour of moving towards a mandatory mediation

system, in which disputing parties will be required to attempt mediation before
they can have access to court services. This is an approach that has been adopted to
a certain extent for some civil and family cases in other jurisdictions (for example,
in Australia and Canada). In the Canadian province of British Columbia, one party
can issue a Notice to Mediate, requiring other parties to mediate the matters in the
dispute. This triggers a mediation process with specified procedures for appointing
a mediator and holding mediation meetings. If any party refuses to engage with the
mediation process, the court has a number of options, which includes ordering the
defaulting party to attend mediation meetings, staying the court action until the party
attends, or making costs orders. The Notice to Mediate requires the parties to attend
a mediation session, not necessarily to settle the dispute using mediation. The Civil
Justice Council notes that:
Our enquiries suggest that the establishment of [the] Notice to Mediate procedure in the
British Columbia civil justice system has led to the growth of informally agreed mediation
as a norm, with the formal procedure itself only being invoked rarely.
(‘ADR and civil justice: interim report’, October 2017, at www.judiciary.uk/wp-content/

uploads/2017/10/interim-report-future-role-of-adr-in-civil-justice-20171017.pdf, para.7.18)
Recent changes to civil and family procedures in England and Wales have continued
the emphasis on attempting mediation before accessing court procedures. Under
CPR 26.4A, all cases allocated to the small claims track in the County Court will now be
automatically referred to a mediation service unless the parties object. In family cases,
under the provisions of the Children and Families Act 2014, there is now a requirement
for separating parties to attend a Mandatory Information Assessment Meeting (MIAM)
before they are allowed to make certain applications to the family court: for example,
disputes over finances or arrangements for child(ren). This involves compulsory
consideration of whether mediation should take place; it does not itself constitute
compulsory mediation.
In the recent case Lomax v Lomax [2019] EWCA Civ 1467, the Court of Appeal had to
consider whether the court could order an Early Neutral Evaluation in circumstances
where one of the parties did not agree to this. The Court held that, as a matter of
interpretation, the Civil Procedure Rules did not require the parties to consent.
In any event, the nature of an Early Neutral Evaluation did not prevent the parties
from having their disputes determined by the court if they did not settle the case at
the Early Neutral Evaluation hearing. The Court therefore ordered an Early Neutral
Evaluation hearing, despite the lack of consent from one of the parties to the case.
The question of whether ADR should be made compulsory was considered in the Civil
Justice Council’s interim report on ADR and civil justice. The report considered the
arguments on both sides of the debate: whether mediation should be compulsory or
generally remain voluntary. Its provisional view was that requiring ADR at the point
when legal proceedings are in contemplation is too heavy-handed, although it may
be more suitable in some types of cases than others: for example, those involving

boundary disputes or clinical negligence. The Civil Justice Council took the view
that it would be much better to have a situation in which most of the population
was comfortable with ADR and aware of its usefulness, than to have to resort to
compulsion or even encouragement. This approach was followed in its final report, in
which the Council stated it would be reluctant at this stage to recommend mandatory
mediation. Instead, the use of a Notice to Mediate scheme, as practised in some parts
of Canada, is seen as a potential way forward.
A key issue is whether a party could ever be forced to use ADR instead of the court
system. It is possible that this might be a breach of Article 6 of the European Convention
on Human Rights, which provides that ‘In the determination of his civil rights and
obligations … everyone is entitled to a fair and public hearing within a reasonable time
by an independent and impartial tribunal established by law’. An order to use ADR that
prevented access to a court may potentially breach this right. In Halsey v Milton Keynes
General NHS Trust [2004] EWCA (Civ) 576, Dyson LJ stated (at para.9):
We heard argument on the question whether the court has power to order parties to
submit their disputes to mediation against their will. It is one thing to encourage the
parties to agree to mediation, even to encourage them in the 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 ... it seems to us likely that compulsion of ADR would be
regarded as an unacceptable constraint on the right of access to the court and, therefore,
a violation of article 6. Even if (contrary to our view) the court does have jurisdiction to
order unwilling parties to refer their disputes to mediation, we find it difficult to conceive
of circumstances in which it would be appropriate to exercise it.
As we have seen from case law, however, it is acceptable that a party should have to
consider ADR, and risk a costs penalty where ADR is unreasonably refused.
17.6 Evaluation of ADR

The potential value of various ADR processes and, in particular mediation, as a
supplement to traditional court processes is clear. Mediation can lead to a conclusion
of a dispute quite quickly and, compared with the cost of a trial, is likely to be less
expensive for the parties. Mediation offers the opportunity for parties to engage
directly in the settlement of their dispute.
However, it is also clear from mediation research that the process may magnify power
imbalances between the parties and that weaker parties may be disadvantaged in
mediation compared with court proceedings. Some concerns have been raised with
regard to the possibility that a private ADR process may be used in a way that does not
necessarily align well with the rights of the individual or the interests of justice. It is a
potential strength of ADR that the parties can choose the legal code or principles to be
followed in settling the dispute. There may be concerns if the result is that a party gets
significantly less than he or she might be entitled to in a court process.
There is also a question of the extent to which mediation and other ADR processes
contribute to the concept of access to justice. The government and, to some extent,
the judiciary increasingly present mediation not merely as a useful alternative
or supplement to public courts, but as an equal or, indeed, preferable method of
handling disputes that increases access to justice. However, the value of mediation to
the access to justice has been questioned by Genn:
Policy-makers may be interested in promoting ADR in order to clear court lists, to reduce
the legal aid bill, reduce enforcement problems, reduce court expenditure on judges, or
to reduce expenditure on court administration. In which case, when it is asserted that
mediation improves ‘access to justice’, what does that mean? Does mediation contribute
to access to the courts? No, because it is specifically non-court based. Does it contribute
to substantive justice? No, because mediation requires the parties to relinquish ideas of
legal rights during mediation and focus, instead, on problem-solving … The mediator does
not make a judgement about the quality of the settlement. Success in mediation is

a settlement that the parties can live with. The outcome of mediation is not about just
settlement it is just about settlement. [Emphases in original]
(Genn, H. Judging civil justice. The Hamlyn Lectures. (Cambridge: Cambridge University
Press, 2009) [ISBN 9780521134392], pp.116–17)
Menkel-Meadow (2004), on the other hand, argues that some forms of ADR and
settlement policies provide the potential for greater access to justice. She argues that
not everyone wants to deal with disputes in the same way and that, if there is a variety
of dispute resolution processes available, this may offer more, rather than less, justice
in terms of the variety of processes and the variety of outcomes that may be achieved.
17.7 Disappearing trials, privatisation of justice and the rule

of law
As mentioned earlier, a high proportion of civil and family disputes formally
commenced in the courts conclude on the basis of an out-of-court settlement. This
has been the pattern of civil litigation in England and Wales and other common law
jurisdictions throughout the 20th century. Over the past 20 years, there has been a
dramatic drop in the number of cases proceeding to trial. This tendency has been
referred to as the phenomenon of ‘the vanishing trial’ and can be detected in many
common law jurisdictions around the world. Those cases that proceed to public trial,
and even those that involve the issue of formal legal proceedings, are now only the
tiniest tip of a large dispute pyramid (see Genn, 1999).
Adjudication
Court proceedings
issued
Legal problems
and disputes
Settlement
Arbitration
Mediation
ENE
Expert determination
Med-Arb Concilliation
Abandoned
Figure 17.1 The civil dispute resolution pyramid

Genn (2012) has argued that the privatisation of civil justice may have implications for
the collective interest in the justice system and, more broadly, for the community as a
whole. She has argued that there are rule of law implications concerning the value of
public adjudication, the potential loss of precedent in common law systems, and the
unknown consequences of the unregulated processes and substantive outcomes of
private dispute resolution.
Menkel-Meadow (2004) takes a different view. Labelling those who worry about the
privatisation of civil justice as ‘litigation romantics’, she suggests that the ‘demise of
the adversary system of trial’ is a ‘continuing evolutionary development of our Anglo-
American legal system’. She suggests that societies are in a transition similar to the
transition from trial by ordeal to trial by judge and jury:
We are now in a time of transition away from trial by the ‘ordeal’ of court, though it may
not be quite clear that we are moving uniformly (or some would argue, returning) toward
‘private’ trials or other legal events for the resolution of our disputes with each other. I
want to lay a more positive cast on the evolutionary story – that the phenomenon of the
‘vanishing trial’ is not necessarily bad. If litigants and their lawyers are choosing other
processes, we must examine why and observe, if we can, the evolutionary picture of why

we are moving to new roles and new institutions and what values these new roles and
institutions might serve.
(Menkel-Meadow, 2004, p.87)
However, it is clear that increasing privatisation will lead to fewer precedents and the
potential erosion of the common law. High rates of settlement and diversion of cases
to arbitration and mediation are likely to have a particular impact on, for example,
commercial law, leading to a loss of guidance and a ‘thinning out’ of the common law.
Finally, widespread settlement means the compromise of legal rights and the
loss of ‘justice’ performed in public. As has been mentioned in earlier chapters,
the requirements of openness, knowledge and accessibility are fundamental
characteristics of the rule of law. Legal rules should be known and applied in public. In
privatising the resolution of civil and family disputes, we may be undermining critical
rule of law protections.
1. What is the connection between the Woolf Report and the Jackson Review, and
Alternative Dispute Resolution?
2. Name any three types of ADR process and define them in your own words.
3. What are the key features of mediation?
4. What are the asserted benefits of mediation compared with litigation?
5. Explain the decisions in PGF II SA v OMFS Company [2013] EWCA Civ 1288 and Gore v
Naheed [2017] EWCA Civ 369 on costs sanctions for failure to attempt mediation.
6. Explain the Notice to Mediate procedure used in the Canadian province of British
Columbia.
7. What are the arguments for and against mandatory mediation?
8. What is meant by the ‘privatisation of justice’?

Describe how mediation is used to settle disputes and explain why people choose
mediation as an alternative to public courts to resolve their disputes.


u The question requires you to explain the role of mediation in settling disputes.
u You are also required to discuss the reasons why people use mediation rather
than the courts – what are the perceived advantages of mediation?
u The question focuses on mediation rather than on other forms of ADR. Although
you may touch on other forms of ADR in your answer where these are relevant,
your main focus should be on mediation.
In particular:
1. You should discuss what mediation consists of: a neutral third party assisting
the disputing parties to reach a settlement. Mediation is used in a wide range
of disputes, including commercial disputes, family disputes, neighbour
disputes and employment disputes. You may note the strong encouragement
of mediation in Lord Woolf’s Report on access to justice. Mediation is an
increasingly common feature of the legal landscape and is almost mandatory in
some disputes.
2. You should discuss some of the relevant case law that shows that mediation
is very strongly encouraged by the court: Cowl v Plymouth City Council (2001)
established that parties must consider ADR (including mediation) before
bringing proceedings where public money is involved; PGF II SA v OMFS Company
(2012) says that, where a party has declined to go to mediation in a case where
it had prospects of success, this can be taken into account when apportioning
costs. Note comments from the Civil Justice Council that the precise guidance
from the Court of Appeal has become somewhat confused – see PGF II and Gore v
Naheed.
3. You need to address the second part of the question, on why people choose
mediation. The perceived advantages of mediation include:
u cheaper and quicker than going to court
u takes place in a private rather than a public forum
u more flexible in terms of both process and resolutions
u focuses on the realities of disputes rather than legal technicalities
u can repair damaged relationships
u can reduce conflict
u can be less stressful for parties than court procedures.
4. You might discuss whether mediation is a satisfactory alternative to the court

process. There are also disadvantages to mediation (e.g. power imbalances
and a loss of focus on individual rights and fairness of settlements). See Genn’s
arguments on the privatisation of justice and disappearing trials, and compare
the view taken by Menkel-Meadow.

Notes

18 The criminal justice system
Contents
18.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
18.2 What is the criminal justice system and what is it for? . . . . . . . . . 221
18.3 A framework for evaluating criminal justice systems . . . . . . . . . . 224
18.4 Criminal justice and the rule of law . . . . . . . . . . . . . . . . . . . 225
18.5 The place of the victim in the criminal justice system . . . . . . . . . . 227
18.6 The criminal court system . . . . . . . . . . . . . . . . . . . . . . . 227
18.7 The Crown Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
18.8 Efficiency and effectiveness of the criminal justice system . . . . . . . 229
18.9 Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
18.10 Miscarriages of justice . . . . . . . . . . . . . . . . . . . . . . . . . 232

Learning outcomes
u describe the purposes of the criminal justice system
u outline the key institutions of the criminal justice system and provide an
overview of their functions
u explain the characteristics of due process and crime control models of criminal
justice systems
u understand the requirements of a fair trial contained in Article 6 of the ECHR
u explain the role of the Criminal Cases Review Commission in relation to
miscarriages of justice.
Essential reading
¢ Sanders, A., R. Young and M. Burton Criminal justice. (Oxford: Oxford University
Press, 2010) fourth edition [ISBN 9780199541317] Chapter 1 ‘The aims and values
of “criminal justice”’ (available on the VLE).
¢ Ward, R. and A. Akhtar Walker & Walker’s English legal system. (Oxford: Oxford
University Press, 2011] 11th edition [ISBN 9780199588107] Chapter 17 ‘The
criminal justice system’ (available on the VLE).
¢ Packer, H.L. ‘Two models of the criminal process’, reprinted from The limits of
the criminal sanction, 1968, with the permission of the publishers, Stanford
University Press, at https://scholarship.law.upenn.edu/penn_law_review/vol113/
iss1/1/
¢ The Right Honourable Lord Justice Auld ‘A review of the criminal courts of
England and Wales’, September 2001, Chapter 1 ‘Introduction’, at https://
webarchive.nationalarchives.gov.uk/20040117025153/http://www.criminal-
courts-review.org.uk/
¢ Naughton, M. and G. Tan ‘Innocence Network UK (INUK) symposium on the

reform of the Criminal Cases Review Commission (CCRC)’, February 2013, at
www.innocencenetwork.org.uk/wp-content/uploads/2013/01/CCRC-Symposium-
Report.pdf
Further reading
¢ European Court of Human Rights ‘Guide on Article 6 of the European Convention
on Human Rights: right to a fair trial (criminal limb)’, updated 31 December 2019,
at www.echr.coe.int/Documents/Guide_Art_6_criminal_ENG.pdf
¢ The Right Honourable Sir Brian Leveson ‘Review of efficiency in criminal

proceedings’, January 2015, at www.judiciary.uk/wp-content/uploads/2015/01/
review-of-efficiency-in-criminal-proceedings-20151.pdf and the government’s
response at https://assets.publishing.service.gov.uk/government/uploads/
system/uploads/attachment_data/file/411854/response-to-leveson-review.pdf
¢ National Audit Office ‘Efficiency in the criminal justice system’, 1 March 2016,
pp.4–9, at www.nao.org.uk/wp-content/uploads/2016/03/Efficiency-in-the-
criminal-justice-system.pdf, Key facts and Summary.
¢ House of Commons Justice Committee, ‘Report on the Criminal Cases Review

Commission’, 17 March 2015, at https://publications.parliament.uk/pa/cm201415/
cmselect/cmjust/850/85002.htm
¢ CCRC 20th anniversary speech by Richard Foster CBE, Chair of the Criminal
Cases Review Commission, at https://ccrc.gov.uk/ccrc-richard-foster-chair
20th_anniversary_conference_speech_-_nov_2017/
¢ Starmer, K., ‘Human rights, victims and the prosecution of crime in the 21st
century’, Criminal Law Review 11 2014, pp.777–87 (available in the Online Library).

Legal systems and methods 18 The criminal justice system page 221
18.1 Introduction
It is not always easy to define the boundary between civil and criminal law, or to justify
why some behaviour is regarded as ‘criminal’ and thus subject to criminal penalties
and why some behaviour is merely subject to civil penalties. The kinds of socially
undesirable behaviour that come to be defined as criminal vary between societies and
over time. It is beyond the scope of this course to consider these issues. Instead, the
focus of this chapter is on the machinery for processing those suspected or accused
of offences that have been defined as criminal, and on evaluating the functioning and
fairness of some of the key institutions and processes of the English criminal justice
system.
What is referred to as the ‘system’ of criminal justice is a collection of organisations,

agencies and processes with responsibility for preventing, detecting, prosecuting and
punishing criminal behaviour. This chapter provides an introduction to the purpose of
the criminal justice system, principles of fair trials and the requirements of Article 6 of
the European Convention on Human Rights. It looks at ways of evaluating the criminal
justice system and attempts to make it more efficient and effective. As part of a
consideration of the courts that hear criminal cases, the chapter considers the appeal
process and referrals of potential miscarriages of justice by the Criminal Cases Review
Commission.
18.2 What is the criminal justice system and what is it for?

When we talk of the criminal justice system, we are referring not only to the
substantive criminal law, but also to the institutional structures for the prevention,
detection and investigation of crime, as well as the processes for prosecuting and
adjudicating criminal behaviour. The criminal justice ‘system’ can be described as a
series of interlocking and interdependent processes which are triggered by the report
or discovery of an alleged offence.
At each stage in the criminal justice process, different agencies and personnel are
involved and the activities of each are, at least in part, influenced by what has gone
before and what might come afterwards. Sanders et al. (2010) describe the criminal
justice system as ‘a complex social institution which regulates potential, alleged
and actual criminal activity within limits designed to protect people from wrongful
treatment and wrongful conviction’.
The key organisations involved in the recording, detection, investigation and

prosecution of crime are:
u the police – responsible for apprehending suspected offenders, investigating

crime, collecting evidence and charging offenders
u the Crown Prosecution Service – responsible for the conduct of prosecution
u courts, judges and juries – responsible for trying defendants accused of criminal
offences
u the Criminal Cases Review Commission – responsible for dealing with miscarriages
of justice.
Each of these institutions will be discussed in this chapter and in Chapters 19–20.

Crimes recorded
by the police
Police arrest
suspect
No further Formal caution/informal Charge or

action warning summons suspect
CPS receive papers from the

police for prosecuting
CPS proceed CPS discontinue case

with charge No court action
Magistrates’ court
hearing
Indictable only Triable-either-way Summary

offences offences offences
Magistrates decline jurisdiction

Crown Court Summary trial at
or defendant elects
trial magistrates’ court
Crown Court trial
Found not guilty − Found not guilty −

case ends case ends
Found
guilty Found
guilty
Sentence
Discharge Community sentence
Monetary penalty Other
Custody
Figure 18.1 Diagram of the criminal justice process

The Auld Review of the Criminal Courts in 2001 identified two main aims of the
criminal justice system: first, a reduction in crime, fear of crime and its social and
economic costs; and, second, the dispensing of justice fairly and efficiently, so that
public confidence in the law and criminal justice system will be maintained.
The aims and objectives of the criminal justice system as expressed by the government
are:
to deliver justice for all, by convicting and punishing the guilty and helping them to stop
offending, while protecting the innocent … detecting crime and bringing it to justice; and
carrying out the orders of court, such as collecting fines, and supervising community and
custodial punishment.
(Criminal Justice System online, 2010, at https://webarchive.nationalarchives.gov.

uk/20100920201828/http://www.cjsonline.gov.uk/aims_and_objectives/)
The functions of the criminal justice system can be said to include:
u preventing and deterring behaviour defined as ‘criminal’
u detecting and investigating crime
u gathering evidence about criminal activity
u arresting, charging and prosecuting offenders
u punishing those found guilty of criminal behaviour.
18.2.1 An adversarial system

As noted earlier in this module guide, the English criminal justice system operates on
the basis of adversarial procedures as opposed to inquisitorial ones. The adversarial
nature of English proceedings in the context of the criminal process influences how
investigations are conducted and evidence collected, and the nature of the trial. Some
key differences between adversarial and inquisitorial criminal proceedings are as
follows.
Responsibility for gathering evidence for trial

In adversarial proceedings, responsibility for gathering evidence rests with the parties
– police and defence – and the evidence is evaluated at trial by a neutral judge and/
or jury. We will consider police powers in relation to the investigation of crime in
Chapter 19.
In inquisitorial proceedings, criminal investigation is typically overseen by either an

‘independent’ prosecutor or an examining magistrate. In the French legal system
this is termed a juge d’instruction. The prosecutor or examining magistrate can seek
particular evidence; direct lines of inquiry favourable to either prosecution or defence;
interview complainants, witnesses and suspects; and ultimately determine whether
there is sufficient evidence to take a case to trial. A French juge d’instruction collects
the evidence and that witness evidence collected as part of the case dossier, which is
available to the judge in the court hearing, and to the defence legal representatives.
The juge d’instruction bases the decision as to whether to commit a case to trial on the
contents of the case dossier.
The trial process

In adversarial trials, the parties determine the witnesses they call and the nature of the
evidence they give, and the opposing party has the right to cross-examine. The court’s
role is confined to overseeing the process by which evidence is given (to ensure that
it is within the rules) and then weighing up that evidence to determine whether there
is ‘reasonable doubt’. There are strict rules to prevent the admission of evidence
that may prejudice or mislead the fact finder (see discussion of s.78 of the Police and
Criminal Evidence Act 1984 in Chapter 19).
In inquisitorial proceedings, the conduct of the trial is largely in the hands of the court.
The trial judge determines which witnesses to call and the order in which they are to

be heard, and conducts the questioning. Adversarial cross-examination is not used to

test evidence. There are fewer rules of evidence and more information is available to
the court at the outset. So, for example, the offender’s criminal history may be read to
the court before the trial begins.
18.3 A framework for evaluating criminal justice systems

Not only do societies differ in their approach to the kinds of behaviour defined as
criminal, but they differ in the way that alleged crimes are investigated, how offenders
are prosecuted and who decides matters of guilt or innocence. There are differences
in structures, in responsibility for different stages of the system and in the system’s
underlying values and objectives. All societies are keen to deter the commission of
crime, but societies vary in the priority that they give, on the one hand, to controlling
crime and, on the other, to ensuring that those accused of crimes are treated fairly.
In comparing criminal justice systems around the world, and in evaluating justice
systems of any particular jurisdiction over time, scholars have found it helpful to use
frameworks for evaluation. So, if we are interested in the quality of justice delivered by
a criminal justice system, we can measure and compare according to certain criteria.
How do criminal justice systems balance the objectives of crime control, the rights of
the accused, and the rights of victims?
18.3.1 ‘Crime control’ and ‘due process’ models of criminal justice systems
In 1968, the US scholar Herbert L. Packer famously developed two models (or ideal
types) to describe the characteristics of criminal justice systems and the values that
underpinned those systems. He labelled the models ‘crime control’ and ‘due process’.
Although Packer developed these models almost 50 years ago, they remain helpful
as an analytic device for evaluating the approach and fairness of criminal justice
processes. Although no criminal justice systems conform precisely to either of these
models, they are useful for directing attention toward the tendencies of different legal
systems.
In his book The limits of the criminal sanction (1968), Packer argues that the values that
underpin his crime control model reflect the view that the repression of criminal
conduct is by far the most important function to be performed by the criminal
process. Criminal justice systems that prioritise the repression of crime will tend to be
characterised by fast and efficient processing of suspects and rapid determination of
guilt. To operate successfully, this sort of criminal justice system must produce high
rates of apprehension and conviction of suspected offenders. The police will have
wide powers to apprehend offenders and investigate crime. There is likely to be a
premium on speed and on finality, by limiting opportunities to challenge procedures
or appeal against decisions. Packer argues that the process must not be ‘cluttered with
ceremonious rituals that do not advance the progress of a case …’. In these ‘assembly
line’ systems, the police make rapid assumptions about guilt. Once the police have
filtered out cases at an early stage, the processes that follow make it difficult for the
accused to dislodge this assumption of guilt.
In contrast, systems that prioritise due process values – Packer’s due process model of
criminal process – tend to be characterised by procedural protections for the accused
and many opportunities to challenge procedures and decisions. Thus, complex rules
of evidence, use of juries and the right to remain silent under police questioning
or in court are regarded as important due process protections for the accused.
Packer argues that, if the crime control model resembles an assembly line, ‘the Due
Process Model looks very much like an obstacle course. Each of its successive stages
is designed to present formidable impediments to carrying the accused any further
along in the process …’. Whereas the crime control model places heavy reliance on the
investigative skills of the police and prosecutors, the due process model stresses the
possibility of error in the collection of evidence, in the memories of witnesses and the
fact that confessions can be coerced. Due process values include mistrust of the police

in adjudicating guilt or innocence; the right to legal advice and representation; finding
of ‘legal’ guilt through formal and elaborate court procedures; exclusion of evidence
obtained through improper means; a presumption of innocence; a heavy burden of
proof on the prosecution; and an acknowledgement that ‘factually guilty’ people may
ultimately be acquitted if there is insufficient evidence of guilt.
Both the crime control and due process models of criminal process recognise the
scope for error. In criminal justice systems dominated by crime control values, the
predominant risk is that innocent people will be wrongly convicted. In criminal justice
systems dominated by due process values, the predominant risk is that guilty people
will be wrongly acquitted. Either error results in a miscarriage of justice, but societies
differ in the risk of error that they prefer to take. William Blackstone wrote in 1769,
in his Commentaries on the laws of England, that ‘the law holds that it is better that
ten guilty persons escape, than that one innocent suffer’. This view, characteristic of
thinking about the English criminal justice system, is a matter of belief or opinion, not
fact. Other societies might take a different stance on the balance between due process
and crime control principles.
The balance within the English criminal justice system has, in modern times, tended
to favour due process protections, and the passing of the Human Rights Act in 1998
has, to some extent, reinforced this approach. However, in recent years, politicians
have placed increasing emphasis on the need to control crime and this has been
particularly evident in relation to terrorist offences. There has been a willingness to
extend the powers of the police, so that they have more opportunity to detain and
question suspected terrorists and engage in electronic surveillance activity. As we
have seen in earlier chapters, the desire of government to prevent and punish terrorist
activity has led to challenges under human rights legislation. Articles of the ECHR
which are relevant to the suppression of both ordinary crime and terrorist activity are:
the right to a fair trial (Article 6); freedom from arbitrary detention (Article 5); freedom
from inhuman and degrading treatment (Article 3); and the right to privacy (Article 8).
Crime control Due process
Protections for accused
Values: WHERE SHOULD Values:

Deterrence THE BALANCE BE? Protect innocent
Punishment Jury
Speed Rules of evidence
Powerful police Legal representation
Presumption of guilt Presumption of
innocence
Standard of proof
Right to silence
HRA Art 6
Figure 18.2 Models of criminal justice vary between societies and over time
18.4 Criminal justice and the rule of law

One of the most important differences between the civil justice system and the
criminal justice system is the fact that in criminal justice the prosecution of cases is
almost always brought by the state against an individual citizen or organisation. The
state has theoretically unlimited resources to mount and proceed with a prosecution,
so the fairness of proceedings is of critical importance. Although it would never be
possible to redress the imbalance of power and resources between an individual and
the state, the protections provided to those accused of criminal offences are designed
to allow the accused an adequate opportunity of defending themselves, so that the
process meets appropriate standards of fairness.

The World Justice Project, which assesses the extent to which countries meet rule of
law standards (see the discussion in Chapter 4), regards a just and fair criminal justice
system as essential to the rule of law. The World Justice Project argues that an effective
criminal justice system is a key aspect of the rule of law because it is the ‘conventional
mechanism’ to redress grievances and punish individuals for offences against society.
The World Justice Project specifies that an ‘effective’ criminal justice system is one
that is capable of investigating and adjudicating criminal offences successfully and in
a timely manner, through a system that is impartial and non-discriminatory, and free
of corruption and improper government influence, all while ensuring that the rights of
both victims and the accused are effectively protected. According to the World Justice
Project, the hallmarks of a well-functioning criminal justice system are:
u effective criminal investigation
u timely and effective criminal adjudication
u due process of law and rights of the accused
u impartiality
u freedom from corruption
u freedom from improper government influence.
18.4.1 Due process in criminal proceedings: Article 6 of the ECHR

As we discussed in earlier chapters, under the rule of law both citizens and the state
are subject to the law. The requirements of due process are that laws should be
known, individuals should know the nature of the case against them, they should be
given an opportunity to defend themselves and decisions should be reached by an
objective and impartial decision-maker.
English common law and rules of criminal procedure have traditionally been directed
at securing a fair trial. So, for example, under s.78 of the Police and Criminal Evidence
Act 1984, courts have a wide discretion to exclude prosecution evidence that has been
unfairly obtained. Since the state and its agencies are bound by the law, if the state
was permitted to use evidence that had been obtained through illegal or unfair means
it would not be complying with basic rule of law principles.
Article 6 of the ECHR supplements English common law and statutory fair trial
protections. Article 6 guarantees a clear and ‘positive’ right to a fair trial and sets out
key criteria, without which the requirements of a fair trial are not met: for example,
the presumption of innocence, the principle against self-incrimination, the right to an
independent and impartial tribunal and the right to legal advice and representation in
order to mount an effective defence. The wording of Article 6 in relation to the special
protection for criminal, as opposed to civil, proceedings is set out in full below:
Article 6 – Right to a fair hearing
(1) In the determination of … any criminal charge against him, everyone is entitled to
a fair and public hearing within a reasonable time by an independent and impartial
tribunal established by law. Judgment shall be pronounced publicly but the press and
public may be excluded from all or part of the trial in the interests of morals, public
order or national security in a democratic society, where the interests of juveniles
or the protection of the private life of the parties so require, or to the extent strictly
necessary in the opinion of the court in special circumstances where publicity would
prejudice the interests of justice.
(2) Everyone charged with a criminal offence shall be presumed innocent until proved
guilty according to law.
(3) Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the

nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence

(c) 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;
(d) to examine or have examined witnesses against him and to obtain the attendance
and examination of witnesses on his behalf under the same conditions as
witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the
language used in court.
18.5 The place of the victim in the criminal justice system

A relatively modern development in the law has been some recognition of the
experience and role of victims of crime. Cases against alleged offenders are brought
not by victims but by the state, so victims are not an official part of court proceedings.
However, there is an increased awareness of the need to take account of the
victim’s part in the criminal justice process, and of their interests in the outcome of
a case. There has been debate over the balance to be drawn between the rights of
defendants, in particular the right to a fair trial, and the rights of victims.
There is now a statutory Code of Practice for Victims of Crime, created under powers
in the Domestic Violence, Crime and Victims Act 2004. This gives victims of crimes a
number of rights, such as the right to be informed about the progress of the police
investigation, and to make a Victim Personal Statement (VPS) to explain how the crime
affected them, and to have this read out in court if the defendant is found guilty. The
Parliamentary Ombudsman has the power to consider complaints that an organisation
has not met its obligations under the Victims’ Code. The role of Commissioner for
Victims was created in 2010. The Commissioner is responsible for representing the
views of victims to government, and carries out research into victims’ services.
Victims are able to make a claim for compensation under the Criminal Injuries
Compensation Scheme; however, it has been argued that the payments made under
this are too low to properly compensate victims of crime. Of course, compensating
for crimes may involve a very theoretical assessment of the level of compensation. For
example, the value of a life lost is impossible to quantify in monetary terms, so ‘proper’
compensation is not actually possible in any real way.
The courts also have the power to order convicted offenders to pay compensation to
their victims through the imposition of a compensation order.
In September 2018, the government published a Victims’ Strategy, which includes

the commitment to ‘strengthen the Victims’ Code, and consult on the detail of victim
focused legislation, including strengthening the powers of the Victims’ Commissioner,
and delivering a Victims’ Law’ (HM Government ‘Victims strategy’, September 2018,
at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/
attachment_data/file/746930/victim-strategy.pdf).
18.6 The criminal court system

Most crimes are dealt with at first instance by the magistrates’ courts or the Crown
Courts (refer back to material in Chapter 11 on the court structure).
Criminal offences are classified into three categories:
u Summary offences: these are the least serious offences and are always tried in the
magistrates’ court. They include most driving offences, minor assault and minor
criminal damage.
u Triable-either-way offences: these are intermediate crimes, and include a wide

variety of offences, such as theft and assault causing actual bodily harm. These
cases can be tried in either the magistrates’ court or the Crown Court.
u Indictable offences: these are the most serious crimes, and include murder,
manslaughter and rape. All indictable offences must be tried in the Crown Court.

Until recently, there would be a preliminary hearing in the magistrates’ court

(committal proceedings), but the government has gradually abolished committal
hearings in order to speed up the justice system.
18.6.1 Magistrates’ courts

Magistrates’ courts are local courts that have jurisdiction over the trial of summary
offences and either-way offences. Offenders accused of a summary offence are not
entitled to trial by jury. The case will be heard by a panel of three Justices of the Peace
(JPs), who are lay magistrates, or a single district judge (magistrates’ court). JPs do
not usually have legal qualifications. They sit part-time and are unpaid. District judges
are legally qualified and paid. Magistrates’ courts deal with about 97 per cent of all
criminal cases.
In the magistrates’ courts, the magistrates or JPs will decide whether the defendant is
guilty or not guilty and impose sentence. Magistrates have limited sentencing powers
and can only impose a maximum prison sentence of 12 months for a single offence
(increased from six months by the Criminal Justice Act 2003). Where the defendant
is charged with a triable-either-way offence and pleads not guilty, there will be an
allocation hearing in the magistrates’ court to determine whether the case should be
dealt with in the magistrates’ court or in the Crown Court before a judge and jury. A
defendant charged with a triable-either-way offence may elect for the case to be dealt
with in the Crown Court by a judge and jury.
18.7 The Crown Court

The Crown Court sits in court centres around England and Wales. The key judges of
the Crown Court are High Court judges, circuit judges and recorders. The Crown Court
has jurisdiction to hear all trials on indictment for offences wherever they have been
committed and the judges have unlimited sentencing powers. The distinguishing
feature of the Crown Court is the use of the jury as part of the trial process.
In Crown Court proceedings, the role of the judge is to manage the trial, ensure that
only evidence fairly obtained is heard by the jury, direct the jury on the evidence, sum
up the evidence and then impose a sentence on the defendant if they are found guilty.
The role of the jury is to listen to the evidence and to decide whether the defendant is
guilty or not guilty – referred to as ‘returning a verdict’. The jury does not play any part
in determining the punishment of offenders who have been found guilty. The judge
must accept the verdict of the jury, whether or not they agree with it, and the jury is
not required to give reasons for their verdict. Once the verdict has been given, the
jury is discharged. Under ss.44 to 50 of the Criminal Justice Act 2003, there are some
circumstances in which a judge in the Crown Court can deal with an indictable offence.
18.7.1 The criminal trial and case management

The purpose of a criminal trial in adversarial proceedings is to ensure that guilty
people are convicted and innocent people are acquitted by procedures that are
demonstrably fair and seen to be so by the accused, the victim and society at large.
The former Lord Chief Justice Lord Woolf has argued that ‘the presumption of
innocence and a robust adversarial process are essential features of English legal
tradition and of the defendant’s right to a fair trial’ (quoted in Ward and Akhtar, 2011,
p.581). However, in his review of the criminal courts, published in 2001, Sir Robin Auld
argued that, although procedural fairness was an essential feature of English criminal
trials, it was necessary to achieve a balance between fairness to the defendant,
efficiency in proceedings and responsibility to victims and the wider community.
He said:
Procedural fairness has always been a feature of our law. Its articulation as such by our
recent adoption of Article 6 adds little of substance to the tradition, though it may generate
much litigation on its application in individual circumstances. My main concern here is

with the notion of ‘balance’. In determining the provision of courts, manner of trial and
the search for fair, speedy and otherwise efficient procedures, it should be remembered
that they are not there just to protect defendants. They also serve the community. And
the criminal process is not a game. It is a search for truth according to law, albeit by an
adversarial process in which the prosecution must prove guilt to a heavy standard.
(para.12)
The criminal justice system is expensive to operate, and there is an additional

responsibility on those involved in criminal proceedings to work efficiently and
not waste public funds. Criminal courts in recent years have come under increasing
pressure from the government to increase the efficiency with which they deal with
criminal cases and reduce public expenditure on the courts. Successive governments
have also wanted to shift the balance somewhat away from due process protection
in order to ensure that factually guilty people are not wrongly acquitted. The
government White Paper ‘Justice for all’ (CM 5563, July 2002) argued that there was
a need to redress the balance in the criminal justice system ‘in favour of the victim’.
This was followed by the Criminal Justice Act 2003, which altered rules of evidence
and introduced changes to trial procedures that removed some of the due process
protections in favour of defendants.
In 2005, new Criminal Procedure Rules (CrPR) intended to improve the efficiency
of criminal trials, came into force. The Rules, which apply to both summary trials
and trials on indictment, introduced a new ‘overriding objective’ equivalent to the
‘overriding objective’ in the Civil Procedure Rules. Rule 1.2 imposes a duty on all
participants in the case to prepare and conduct the case in accordance with the
overriding objective, which is that ‘criminal cases be dealt with justly’. Rule 1.2 sets out
the requirements of dealing with cases justly as follows:
1.2 Dealing with a criminal case justly includes –
(a) acquitting the innocent and convicting the guilty;
(b) dealing with the prosecution and the defence fairly;
(c) recognising the rights of a defendant, particularly those under Article 6 of the
European Convention on Human Rights;
(d) respecting the interests of witnesses, victims and jurors and keeping them
informed of the progress of the case;
(e) dealing with the case efficiently and expeditiously;
(f) ensuring that appropriate information is available to the court when bail and
sentence are considered; and
(g) dealing with the case in ways that take into account the gravity of the offence
alleged, the complexity of what is in issue, the severity of the consequences for the
defendant and others affected, and the needs of other cases.
18.8 Efficiency and effectiveness of the criminal justice system

We have mentioned already that there is not a unified criminal justice system, but a
series of different processes. This was recently recognised by Sir Brian Leveson, who
was, until his recent retirement, President of the Queen’s Bench Division and Head of
Criminal Justice. He said:
There is not one criminal justice system, but a series of criminal justice systems, each
going in their own direction, but all of which require a single strategic plan, working
for every part of the system and not just their own sector. There is good evidence that
Government now also sees the need for this joined up approach and for joined up delivery.
This can only be extremely helpful.
(Sir Brian Leveson ‘Criminal trials: the human experience’, speech at University College
London, 13 June 2019, at www.judiciary.uk/wp-content/uploads/2019/06/Sir-Brian-Leveson-
UCL-Valedictory-lecture.pdf)

Sir Brian is here making a point that has been recognised in a number of reports into the
criminal justice system: that this often disjointed collection of systems can lead to a lack
of efficiency and effectiveness. This feeds into a more general concern that the criminal
justice system is increasingly struggling to meet the needs of the people using it.
In February 2014, in the context of government reductions in public spending, Sir

Brian was asked to carry out a review of the efficiency of the criminal justice system.
The approach of the review was to find ways of encouraging better communication
between the agencies and parties involved in criminal justice, and maximising the
opportunities to improve effectiveness and efficiency with the use of modern IT.
The resulting report (‘Review of efficiency in criminal proceedings’, January 2015,

at www.judiciary.uk/wp-content/uploads/2015/01/review-of-efficiency-in-criminal-
proceedings-20151.pdf) recommended an overarching principle of ‘getting it right first
time’, and made suggestions, including:
u more use of technology to allow remote hearings
u tighter case management by judges, including, in appropriate cases, the provision

of timetables for evidence and speeches; compliance by all parties with the
Criminal Procedure Rules
u flexible opening hours in magistrates’ courts to accommodate those who cannot

attend during normal working hours.
The government published a response to the report in March 2015 (https://assets.

publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/
file/411854/response-to-leveson-review.pdf), welcoming its recommendations,
accepting them all in principle, and indicating that the government would start to
take many recommendations forward in a short timescale.
The criminal justice system also formed part of the subject matter of the ‘Transforming
our justice system’ summary of reforms, which was discussed in Chapter 15 in the context
of civil justice reforms. The summary of reforms includes aligning the criminal courts so
that they work more closely together, and making it easier to transfer cases between the
Crown Court and magistrates’ courts; streamlining processes and removing unnecessary
court appearances; and enabling online convictions and fixed fees.
There are therefore a number of reforms to the criminal courts in progress. However,
a report from the National Audit Office argued that the current government reform
programmes will not be sufficient to drive out inefficiency in the criminal justice system.
In terms of the performance of the criminal justice system, the report found that:
u delays are getting worse against a backdrop of continuing financial pressure
u there have been some improvements in the management of cases since 2010–11,
but two-thirds of cases still do not progress as planned, creating unnecessary costs
u trials that collapse or are delayed create costs for all the participants, including the
CPS, witnesses and the courts
u delays and collapsed trials also damage the public’s confidence in the system;
giving evidence in court as a witness or victim can be a difficult and stressful
process and the uncertainty caused by delays and collapsed trials exacerbates this.
(NAO, ‘Efficiency in the Criminal Justice System’, 1 March 2016, at www.nao.org.uk/wp-

content/uploads/2016/03/Efficiency-in-the-criminal-justice-system.pdf)
18.9 Appeals
The ease with which decisions in criminal cases can be challenged in appellate courts
is an important criterion for measuring the quality of a criminal justice system. The
appeals process is important for the correction of mistakes to avoid injustice to
citizens who may be deprived of their liberty. The appeals process also reinforces due
process principles and procedures by quashing decisions that have been reached

unfairly. This safeguards the integrity of the criminal justice system as a whole. Finally,
the appeal process is important for promoting consistency within the common law
system and offers the judiciary the opportunity to develop clear legal rules.
Both the defence and prosecution in criminal trials have opportunities to appeal
against conviction and sentence. For defendants, cases heard initially in the
magistrates’ court will usually be appealed to the Crown Court, and this will be
a complete rehearing. A second, different route of appeal is an appeal from the
magistrates’ court to the High Court (specifically, the Divisional Court of the Queen’s
Bench Division) by way of case stated. This type of appeal is limited to matters of law,
not fact.
Cases heard initially in the Crown Court will be appealed to the Court of Appeal and
there may then be a further appeal to the Supreme Court.
If all normal appeal routes have been exhausted, and either the prosecution or the
defence still maintains that an injustice has been done, this is defined as a potential
miscarriage of justice. Special procedures exist to review these miscarriages of justice.
A miscarriage of justice occurs either when it is alleged that an innocent person has
been wrongly convicted or when it is alleged that a guilty person has been wrongly
acquitted.
18.9.1 Prosecution appeals against wrongful acquittal or sentence

Section 36 of the Criminal Justice Act 1972: the Attorney General’s reference:
Following an acquittal on indictment, the Attorney General can make a reference
to the Court of Appeal on a point of law in order to clear up doubtful points in the
criminal law. Such a reference has no effect on the acquitted defendant, even if the
Court of Appeal finds that the law had been wrongly applied in the case and the
defendant wrongly acquitted.
Section 36 of the Criminal Justice Act 1988: the Attorney General’s reference of
unduly lenient sentences: The prosecution cannot appeal to the Court of Appeal
against the sentence imposed on the defendant, but under this section the Attorney
General can refer the sentence of a person in a proceeding in the Crown Court if it
appears that the sentence has been unduly lenient. The Court of Appeal can then
increase the sentence if they think it is justified.
Sections 75 and 76 of the Criminal Justice Act 2003: prosecution appeal against
acquittal: In limited circumstances, it is now possible for a retrial to take place, despite
an earlier acquittal. This may occur if there is new and compelling (reliable, substantial
and highly probative) evidence of the acquitted person’s guilt, and it is in the public
interest that there should be a retrial.
18.9.2 Defence appeals against wrongful conviction

Convictions in the magistrates’ court are appealed to the Crown Court, where there
will be a complete re-hearing of the case. Convictions in the Crown Court are appealed
to the Court of Appeal (Criminal Division). Under the Criminal Appeal Act 1968 all
defendants convicted in the Crown Court who want to appeal against conviction and/
or sentence must apply for permission to appeal from the Court of Appeal.
A further appeal may be possible to the UK Supreme Court, but only if the Court of
Appeal certifies that the case involves a point of law of general public importance and
it appears that the point is one that ought to be considered by the Supreme Court, and
either the Court of Appeal or the Supreme Court gives leave for the appeal to proceed.
Under the provisions of the Criminal Appeal Act 1968 as amended, the Court of Appeal
shall allow an appeal against conviction if it feels that the conviction is unsafe. In all
other cases the appeal must be dismissed.

18.10 Miscarriages of justice
18.10.1 What is a miscarriage of justice?

Although there can be wider definitions of miscarriages of justice, they are more
usually understood in the narrower sense of an innocent person being convicted of
a crime they did not commit. In the UK, there have been a number of high-profile
miscarriages of justice, for example:
u Sally Clark, who was convicted of murdering her baby sons in 1996. She was
released on appeal in 2003 when it was found that the children died from cot-
death syndrome and that Sally Clark was innocent. Expert evidence at the original
trial was discredited.
u Stefan Kiszko, who was convicted of murder and served 16 years in prison before
being released. Later DNA evidence showed him to be innocent.
u The ‘Birmingham Six’, were sentenced to life imprisonment after being found
guilty of carrying out an infamous pub bombing which killed 21 people and injured
182. They were released after 17 years; their ‘confessions’ were found to have been
forced from them and the forensic evidence unreliable.
The Criminal Cases Review Commission provides an indication of the number of

miscarriages of justice that have occurred since it started its work in April 1997.
Between then and the end of April 2019:
u It has referred 664 cases to the Court of Appeal for reconsideration.
u Of the 654 cases where appeals have been heard by the courts, 439 appeals have
been allowed and 202 dismissed.
u The Commission currently has 650 cases under review and 151 are awaiting review.
u The Commission has received a total of 25,006 applications for review.
(Criminal Cases Review Commission statistics, at https://ccrc.gov.uk/case-statistics/)
In January 2019, the Supreme Court considered the extent to which a victim of a
miscarriage of justice must be compensated by the state. In R (Hallam) v Secretary of
State for Justice [2019] UKSC 2, the Court had to decide whether the statutory provisions
governing eligibility for compensation for a miscarriage of justice were compatible
with the presumption of innocence in Art 6(2) of the European Convention on Human
Rights. The government had refused to grant the claimants any compensation, arguing
that the new evidence which had led to their convictions being found to be unsafe did
not show ‘beyond reasonable doubt that [they] did not commit the offence[s]’. The
majority of the Supreme Court held that there was no incompatibility with the ECHR,
and therefore declined to make a declaration of incompatibility under section 4 of the
Human Rights Act 1998.
18.10.2 The Criminal Cases Review Commission

Until 31 March 1997, the Home Secretary was responsible for dealing with applications
by people claiming to be victims of miscarriages of justice, and he had the power to
refer such cases back to the Court of Appeal for reconsideration. Following growing
public concern about a succession of high-profile miscarriages of justice in the 1980s,
the Royal Commission on Criminal Justice was set up in 1991. The Royal Commission
was given the task of examining the effectiveness of the criminal justice system in
securing the conviction of the guilty and the acquittal of the innocent.
The Royal Commission was of the view that the power of the Home Secretary to
review allegations of miscarriages of justice was incompatible with the principle of the
separation of powers between the courts and the executive. It was not appropriate
for a politician to be making decisions about whether miscarriages of justice should
be investigated, given his responsibility for law and order, and for the police. The

Commission’s report was presented to Parliament in July 1993 and recommended the
establishment of an independent body to:
u consider suspected miscarriages of justice
u arrange an investigation where appropriate
u refer cases to the Court of Appeal where matters needed further consideration.
The Criminal Appeal Act 1995 was subsequently passed, enabling the establishment
of the Criminal Cases Review Commission (CCRC). The role of the CCRC is to review and
investigate cases of suspected wrongful convictions and/or sentence in England and
Wales. Under s.13 of the Criminal Appeal Act 1995 the CCRC should refer cases back for
reconsideration whenever it feels that there is a ‘real possibility’ that the conviction,
verdict, finding or sentence will not be upheld. This requires that there is an argument
or evidence that was not raised during the trial.
In May 2016, the Criminal Cases Review Commission (Information) Act 2016 was passed.
This short Act, which began as a Private Member’s Bill, gives the CCRC further powers to
obtain information for the purposes of its investigations. The CCRC now has the same
power to obtain information from private bodies as from public bodies.
References by the CCRC take effect as if they were appeals by the convicted person and,
once the reference has been made, the CCRC has no further involvement. The CCRC may
investigate cases of its own accord or individuals may ask the Commission to investigate,
but, in either event, normal rights of appeal must ordinarily have been exhausted before
the Commission can intervene (although failure to do this is not an absolute bar).
The CCRC’s decision-makers are publicly appointed Commissioners, and they are
supported by senior managers, legal and investigations advisers, and casework and
administrative staff. Investigations are mainly carried out by CCRC staff but it can
require others, such as the police, to carry out investigations on its behalf.
How effective is the Criminal Cases Review Commission?

A review of the CCRC’s effectiveness as the only gateway back to the Court of Appeal
for convicted persons who have failed in their first appeal was published by the
Innocence Network UK in February 2013 (www.innocencenetwork.org.uk/wp-content/
uploads/2013/01/CCRC-Symposium-Report.pdf). In particular, the report argued
that the ‘real possibility’ test under s.13 of the Criminal Appeal Act 1995 enshrines
a relationship of deference to the Court of Appeal, which prevents the CCRC from
referring potentially genuine wrongful convictions of applicants who may be innocent
if it is thought that the Court of Appeal may conclude that the case lacks legal merit.
The report argued that this severely compromises the CCRC’s independence and
hinders its ability to assist applicants who may be innocent. The report recommended
that the ‘real possibility’ test under s.13 of the Criminal Appeal Act 1995 should be
replaced with a different test that allows the CCRC more independence, both in its
review of alleged wrongful convictions and in its consideration of whether to refer a
case back to the Court of Appeal.
In 2014, the House of Commons Justice Committee established a special inquiry into
the work of the Criminal Cases Review Commission (https://publications.parliament.
uk/pa/cm201415/cmselect/cmjust/850/85002.htm). Key questions for the inquiry were:
u whether the CCRC has fulfilled its expectations and remit
u whether the CCRC has sufficient statutory powers and resources to investigate
cases and to perform its wider role of promoting confidence in the criminal justice
system.
The broad conclusion of the inquiry was that the CCRC is performing reasonably well,
but that it should do more to increase understanding of its work. The Committee also
recommended that the CCRC should be given the resources and powers it requires
to perform its job effectively. The Committee said of the CCRC that ‘it remains as
important and as necessary a body as ever’.

1. What are the objectives of the criminal justice system?
2. Which key organisations and agencies are involved in the criminal justice
system?
3. What are the differences between evidence gathering in the French and the
English criminal justice systems?
4. What features would you expect to see in a criminal justice system that
emphasises crime control objectives, and a criminal justice system that
emphasises due process protections?
5. Which Articles of the ECHR are relevant to the investigation and prosecution of
crime, and why?
6. Which type of cases are heard in the magistrates’ courts and which in the Crown
Court?
7. What factors contribute to courts dealing with cases ‘justly’ under Criminal
Procedure Rule 1.2?
8. What opportunities do the prosecution and the defence have to appeal against
acquittal and sentence?
9. What is the definition of a miscarriage of justice?
10. What were the reasons for establishing the Criminal Cases Review Commission?

19 The investigation and prosecution of crime
Contents
19.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237
19.2 Police powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237
19.3 The prosecution of crime: the Crown Prosecution Service . . . . . . . . 240

Learning outcomes
u describe the powers of the police to stop and search and arrest suspects, and the
procedural limits on those powers
u explain how the Crown Prosecution Service exercises its discretion in the
prosecutorial process
u discuss assisted suicide as an example of the application of the Code for Crown
Prosecutors public interest test
u evaluate the effectiveness of the Crown Prosecution Service.
Essential reading
¢ Malleson, K. and R. Moules The legal system. [Oxford: Oxford University Press,
2010] fourth edition [ISBN 9780199560189] Chapter 11 ‘Police powers’ (available
on the VLE).
¢ Equality and Human Rights Commission ‘Stop and think: a critical review
of the use of stop and search powers in England and Wales’, 2010, updated
April 2014, at www.equalityhumanrights.com/en/publication-download/
stop-and-think-critical-review-use-stop-and-search-powers-england-and-wales
¢ Crown Prosecution Service ‘The code for Crown Prosecutors’, October 2018, at
www.cps.gov.uk/sites/default/files/documents/publications/Code-for-Crown-
Prosecutors-October-2018.pdf
¢ Director of Public Prosecutions, Crown Prosecution Service ‘Policy for

prosecutors in respect of cases of encouraging or assisting suicide’,
February 2010, updated October 2014, at www.cps.gov.uk/legal-guidance/
suicide-policy-prosecutors-respect-cases-encouraging-or-assisting-suicide
¢ Home Office ‘Justice for all’ (White Paper, CM 5563, July 2002), Chapter 3 ‘Getting
the process right at the start’ (available in the Online Library, through the UK
Parliamentary Papers (ProQuest) database).

¢ R (on the application of Purdy) v DPP [2009] UKHL 45, [2010] 1 AC 345.
¢ R (on the application of Nicklinson) v Ministry of Justice [2014] UKSC 38.
¢ R (on the application of Kenward) v DPP [2015] EWHC 3508 (Admin).
Further reading
¢ Home Office ‘Code A: Revised Code of Practice for the exercise by police officers
of statutory powers of stop and search’, 2014, at https://assets.publishing.
service.gov.uk/government/uploads/system/uploads/attachment_data/
file/414195/2015_Code_A_web-19-03-15.pdf
¢ Equality and Human Rights Commission, Briefing Paper 5, ‘Race

disproportionality in stops and searches under Section 60 of the Criminal Justice
and Public Order Act 1994’, at www.equalityhumanrights.com/sites/default/files/
briefing-paper-5-race-disproportionality-in-stops-and-searches-under-s60-of-
criminal-justice-and-public-order-act-1994.pdf
¢ Miller, J. ‘Profiling populations available for stops and searches’, Home Office
Police Research Series Paper 131, Conclusions, pp.83–90, October 2000 at www.
semanticscholar.org/paper/Profiling-Populations-Available-for-Stops-and-Miller/
1005d76d353c62fcd4bf334cfd6068079f09b13d
¢ Alison Saunders, Director of Public Prosecutions, ‘Thirty years of the CPS’, Law
Society Gazette, 17 October 2016, at www.lawgazette.co.uk/comment-and-
opinion/thirty-years-of-the-cps/5058333.article

Legal system and method 19 The investigation and prosecution of crime page 237
19.1 Introduction
In the last chapter, we considered the overall scope of the criminal justice system: its
purposes, characteristics and key institutions. Now we move on to looking in more
depth at some of these different elements of the system, each of which has a role at
a different stage of the criminal justice process. This starts with the pre-trial stage,
before the courts become involved, and includes the investigation and the decision to
prosecute a criminal offence. Although of course the police will of course usually be
responsible for criminal investigations, it is worth noting that there are other bodies
that have law enforcement responsibilities, such as the Health and Safety Executive,
which is responsible for the enforcement of workplace health and safety laws, and
the Serious Fraud Office, which prosecutes the top level of serious or complex fraud,
bribery and corruption.
The principal responsibilities of the police are, broadly, to prevent crime, to detect
and apprehend offenders when crimes have been committed and to investigate crime
and collect evidence. In carrying out these functions, the police have a wide measure
of discretion in the exercise of powers to stop, search, arrest and detain suspects. In
rule of law and due process terms, these powers are very important and it is critical for
the fairness of the criminal justice system that the police act both within their legal
powers and that they exercise those powers fairly.
Even though a suspected offender may have been charged with a criminal offence,
it is not inevitable that they will be prosecuted through the criminal justice process.
As Lord Hope said in the case of Purdy [2009] UKHL (at para.44): ‘It has long been
recognised that a prosecution does not follow automatically whenever an offence is
believed to have been committed.’ But it is no longer the police who decide whether
an alleged offender should be prosecuted in the courts (although this was historically
the case). The decision to prosecute is now taken by the independent prosecution
authority, the Crown Prosecution Service.
19.2 Police powers

The powers of the police are set out in the Police and Criminal Evidence Act 1984
(PACE). This Act codified pre-existing common law and statutory provisions. The
provisions of the Act cover:
u powers to stop and search in the street
u powers of arrest
u powers of search and seizure
u detention and questioning of suspects
u the use of evidence at trial.
The Act is accompanied by eight Codes of Practice that guide how the powers under
the Act should be exercised. The Codes of Practice cover the following police powers:
stop and search, arrest, detention, investigation, identification and interviewing
detainees. The Codes are established under the statutory authority of section 66 of the
Police and Criminal Evidence Act 1984.
Code A is the Code of Practice for police powers of stop and search, and starts by
setting out some of the fundamental principles governing stop and search powers:
1.1 Powers to stop and search must be used fairly, responsibly, with respect for people
being searched and without unlawful discrimination …
1.2 The intrusion on the liberty of the person stopped or searched must be brief and
detention for the purposes of a search must take place at or near the location of the
stop.

1.4 The primary purpose of stop and search powers is to enable officers to allay or confirm
suspicions about individuals without exercising their power of arrest. Officers may
be required to justify the use or authorisation of such powers, in relation both to
individual searches and the overall pattern of their activity in this regard, to their
supervisory officer or in court.
1.5 An officer must not search a person, even with his or her consent, where no power to
search is applicable …
(Home Office ‘Code A: Revised Code of Practice for the exercise by police officers of
statutory powers of stop and search’, 2014, at https://assets.publishing.service.gov.uk/
government/uploads/system/uploads/attachment_data/file/414195/2015_Code_A_web-19-
03-15.pdf).
Breaches of the powers under the Act will mean that the police have broken the law
and they may be liable to civil or even criminal proceedings. Breaches of the Codes of
Practice are not regarded as unlawful, but evidence obtained by the police in breach
of the Codes of Practice may mean that the evidence will be excluded at trial because
it will be deemed not to have been obtained fairly. Section 78 of PACE provides that a
court may refuse to allow evidence presented to the court if it appears that, having
regard to all the circumstances, the admission of the evidence would have such an
adverse effect on the fairness of the proceedings that the court ought not to admit it.
19.2.1 Stop and search

The police have relatively wide powers to stop and search people in public places
(often referred to as ‘stop and search’ powers). The main powers of stop and search
are found in s.1 of PACE, but, since its enactment, a considerable number of other
stop and search powers has been implemented. Section 60 of the Criminal Justice
and Public Order Act 1994 gives the police extensive power to stop and search in
anticipation of violence, but only where its use has been authorised in a particular
location by a police inspector. Under s.43 of the Terrorism Act 2000, police officers can
stop and search a person who they reasonably suspect of being a terrorist, to discover
whether the suspect has anything which may constitute evidence of being a terrorist.
The power to stop and search is very useful for the police in attempting to prevent
crime from occurring or to apprehend people who may have been involved in
committing crime. Under s.1 of PACE, the police have the power to search ‘any person
or vehicle … for stolen or prohibited articles’. The officer must have reasonable
grounds for suspecting that the person has these articles in their possession.
As noted above, in order to ensure fairness in how this power is exercised, Code A
provides that the power should be used fairly, responsibly, with respect for people
being searched and without unlawful discrimination. There has been concern that
the police have disproportionately stopped and searched black and minority ethnic
citizens, and that this is a reflection of ‘institutional racism’ within the police. In 2010,
the Equality and Human Rights Commission published a study of stop and search
which concluded that a black person was at least six times more likely to be stopped
and searched by the police in England and Wales than a white person. In the view
of the Commission, a significant cause of the disproportionate number of black and
minority ethnic people being stopped and searched by the police was racism among
the police. The Commission argued that stop and search powers were being used in a
discriminatory and unlawful way.
These findings were echoed in research by the Equality and Human Rights Commission
in 2012 on the powers of stop and search in section 60 of the Criminal Justice and
Public Order Act 1994. The research found that, when exercising these powers, some
police forces stop and search a much higher proportion of black, Asian and mixed
ethnicity people than other groups. On the other hand, research by the Home Office
suggests that, in certain areas, the people most likely to be out and about on the
streets at night are disproportionately young black men and that they are therefore at
greater risk of being stopped and searched.

Whatever the explanation for disproportionate stops and searches of black and
minority ethnic citizens, a public perception that certain groups are being targeted
for stop and search creates the impression of unfairness and may undermine public
confidence in, and support for, the police – especially among minority groups.
To address some of these concerns, in March 2014, the government announced the
Best Use of Stop and Search Scheme. The aims of the Scheme were ‘to achieve greater
transparency, community involvement in the use of stop and search powers and to
support a more intelligence-led approach, leading to better outcomes’. New data-
recording measures were brought in, as were greater opportunities for community
involvement, by allowing members of the local community to accompany police
officers on patrol and observe them using stop and search powers, and through the
introduction of a local complaints policy.
On 19 March 2015, the Revised Code A (Stop and Search) came into force. A main
objective of the Revised Code A was to clarify what constitutes ‘reasonable grounds
for suspicion’, the legal basis upon which police officers carry out the vast majority of
stops (see sections 2.2–2.11 of Code A).
Police powers of stop and search must be exercised in compliance with the European
Convention of Human Rights in order to be exercised lawfully. In R (on the application
of Roberts) v Commissioner of Police of the Metropolis [2015] UKSC 79, the Supreme Court
found that the stop and search powers in section 60 of the Criminal Justice and Public
Order Act 1994 did not breach Articles 5 and 8 of the European Convention on Human
Rights. The Court recognised that section 6 of the Human Rights Act 1998 made it
unlawful for a police officer to act in a way that was incompatible with the Convention
rights; however, the interference with the applicant’s Article 8 rights was ‘in
accordance with the law’. The Court took into account the authorisation procedures,
the safeguards in the Code of Practice and the fact that use of the power was subject
to legal challenge. The Article 5 argument was not made before the Supreme Court, as
the Court of Appeal found that Article 5 had no application to the case, as the search
procedure would ordinarily be relatively brief and would not involve a deprivation of
liberty (R (on the application of Roberts) v Commissioner of Police of the Metropolis [2014]
EWCA Civ 69).
19.2.2 Arrest and detention

An arrest occurs when legal authority is used to deprive a person of their liberty – even
for a short time. In the case of Spicer v Holt [1977] AC 987, Lord Dilhorne stated that
‘Whether or not a person has been arrested depends not upon the legality of the
arrest, but on whether he has been deprived of his liberty to go where he pleases.’
The police cannot detain a person against their will short of arresting them. A person
is either free to leave or under arrest. The case of R v Lemsatef [1977] 2 All ER 835
establishes that the police cannot require someone to assist with their enquiries
against their will without arresting them. In that case, Lawton LJ said (at p.816):
It must be clearly understood that neither customs officers nor police officers have any
right to detain somebody for the purposes of getting them to help with their inquiries.
The power of the police to arrest without an arrest warrant is governed by s.24 of PACE
as amended by the Serious Organised Crime and Police Act 2005. This power now
covers all offences. Under s.24 of PACE the police may arrest:
u anyone who is about to commit an offence
u anyone who is in the act of committing an offence
u anyone whom the police officer has reasonable grounds for suspecting to be about
to commit an offence
u anyone whom the police officer has reasonable grounds for suspecting to be
committing an offence.

A police officer exercising this power must tell the person that they are under
arrest (s.28(1)) and the reason for the arrest. Precise words do not have to be used
(Abbassy v Metropolitan Police Commissioner [1990] 1 WLR 385; Taylor v Chief Constable
of Thames Valley Police [2004] EWCA Civ 858), but the arrest may be unlawful if these
requirements are not met.
A lawful arrest thus requires two elements:
u a person’s involvement or suspected involvement or attempted involvement in the

commission of a criminal offence, and
u reasonable grounds for believing that the person’s arrest is necessary.
Code G of PACE makes clear that both elements must be satisfied and that it can never
be necessary to arrest a person unless there are reasonable grounds to suspect them
of committing an offence. In McCann v Crown Prosecution Service [2016] Crim LR 59,
the mistaken belief of a police officer that protestors were blocking a public highway,
when in fact the road was a private road, did not render the arrest unlawful. Applying
s.24(6) of PACE and the requirement of ‘reasonable grounds for suspecting that an
arrestable offence had been committed’, the court held that ‘there is no reason
why similar principles should not apply to the directions of the officer in the phase
immediately preceding arrest’ (at para.30). Accordingly:
… it was not necessary for the officer to have had the correct offence in mind at the time
the direction to move was given. It was sufficient for the officer to have taken steps which
reasonably appeared to her to be necessary for preventing crime. The fact that the officer
in fact had an offence of which the appellant was not guilty in mind did not prevent her
from taking steps which in the circumstances, as she believed them to be, reasonably
appeared to her to be necessary for preventing crime.
(para.31)
Once a person has been arrested, the person should be taken directly to a police
station and brought before the ‘custody officer’, whose role is to supervise the
detention process. Most importantly, this involves ensuring that there is a reason
for them to remain in custody and to decide whether there is sufficient evidence
to charge them (a ‘charge’ is a written accusation that the person has committed a
crime). If there is insufficient evidence to charge a person, they must be released,
unless the custody officer believes it is necessary for them to remain in detention –
usually to secure more evidence by questioning.
There are strict limits on the amount of time a person can be detained in custody
without charge. For most offences, a person can be detained for up to 36 hours without
charge. If the police want to detain a person beyond that time, they can apply to
magistrates for a warrant (formal authorisation) for further detention. The maximum
period a person arrested under PACE can be detained without charge is 96 hours.
Once a person has been charged, they should be released, unless there is a reason to
detain them – for example, that they will not provide their name and address or there
is a need to protect the suspect or others, or there is a reasonable belief that they will
not attend court.
19.3 The prosecution of crime: the Crown Prosecution Service

It is important, before a prosecution is proceeded with, that the prosecuting authority
has reasonable confidence that it will be able to secure a conviction. This means
that there must be sufficient, reliable evidence of good quality, which has been fairly
obtained, for the prosecution to prove beyond reasonable doubt that the defendant
is guilty. Unless there is a reasonable prospect of securing a conviction, it would be
unfair to put a defendant through the trauma of a criminal prosecution and it would
be a waste of public funds. But, in addition to this, there is the question of whether it
is in the public interest for a prosecution to proceed. The decision whether or not to
prosecute a case following a criminal charge lies with the prosecuting authority.

Before 1986, prosecutions in England and Wales were undertaken by the police.
However, in the early 1980s, there was unease about inconsistency in police practice
in proceeding with prosecutions and also a concern that, having been involved in the
investigation of crime, the police were not in the best position to take a dispassionate
and objective view of the quality of evidence available and the prospects of conviction.
The perception was that too many cases were being proceeded with on the basis of
weak evidence, leading to judge-ordered acquittals. Since the burden of proof in a
criminal trial is on the prosecution, if at the end of the prosecution’s case the judge
feels that the evidence is too weak for a jury to convict, then the judge may order an
acquittal. This was confirmed in the case of R v Galbraith [1981] 1 WLR 1039, where it
was held that:
Where the judge comes to the conclusion that the prosecution evidence, taken at its
highest, is such that a jury properly directed could not properly convict upon it, it is his
duty, upon a submission being made, to stop the case.
Since 1986, the main responsibility for prosecuting criminal offences lies with the
independent Crown Prosecution Service (CPS). The CPS was established in 1986 under
the Prosecution of Offences Act 1985. Section 3(2) states that the function of the CPS is
to take over criminal proceedings from the police (and other agencies) and proceed,
where it is deemed appropriate, with the prosecution in court.
19.3.1 Prosecutorial discretion and the CPS Code

CPS prosecutors have considerable discretion about whether or not to prosecute. They
must decide in each individual case whether or not to proceed with a prosecution.
In reaching their decision, they must follow the guidance in the CPS Code for
Crown Prosecutors. The Code is issued by the head of the CPS, the Director of Public
Prosecutions, and has been updated several times (it is currently in its eighth edition).
There are two stages:
i. the evidential stage; followed by
ii. the public interest stage.
The Code also contains general principles that the CPS must follow, such as decisions
being taken fairly and objectively, without letting personal views about ethnic or
national origin, gender, religion or belief and so on influence decisions. As public
authorities under section 6 of the Human Rights Act 1998, prosecutors must apply
the principles of the European Convention on Human Rights. The general principles
highlight the independence of the CPS:
The independence of the prosecutor is central to the criminal justice system of a
democratic society. Prosecutors are independent from persons or agencies that are not
part of the prosecution decision-making process. CPS prosecutors are also independent
from the police and other investigators. Prosecutors must be free to carry out their
professional duties without political interference and must not be affected by improper or
undue pressure or influence from any source.
(Code for Crown Prosecutors, para.2.1)
The evidential stage

Prosecutors must be satisfied that there is sufficient evidence to provide a realistic
prospect of conviction against each suspect on each charge. They must consider what
the defence case may be, and how it is likely to affect the prospects of conviction.
A case which does not pass the evidential stage must not proceed, no matter how
serious or sensitive it may be. When deciding whether there is sufficient evidence to
prosecute, prosecutors must ask themselves:
u Can the evidence be used in court? Is there any question over the admissibility of
evidence?
u Is the evidence reliable?

u Is the evidence credible?
u Is there any other material that might affect the sufficiency of evidence? This
includes examined and unexamined material in the possession of the police, and
material that may be obtained through further reasonable lines of inquiry.
The evidential test and its compatibility with Convention rights was considered by the
European Court of Human Rights in Da Silva v United Kingdom (5878/08) (2016) 63 E.H.R.R.
12. The Court held that the evidential test did not violate any Convention rights, noting
that:
It is clear that the threshold applied by prosecutors in England and Wales is not an
arbitrary one. On the contrary, it has been the subject of frequent reviews, public
consultations and political scrutiny …
While the threshold adopted in England and Wales may be higher than that adopted in
certain other countries, this reflects the jury system that operates there … As weak or
unmeritorious cases cannot be filtered out by the trial judge, the threshold evidential test
for bringing a prosecution may have to be a more stringent one.
(paras.269–270, The public interest stage)
In every case where there is sufficient evidence to justify a prosecution, prosecutors

must go on to consider whether a prosecution is required in the public interest. The
factors that are taken into account in making this decision are:
u How serious is the offence committed?
u What is the level of culpability of the suspect?
u What are the circumstances of and the harm caused to the victim?
u Was the suspect under the age of 18 at the time of the offence? What was the
suspect’s age and maturity at the time of the offence?
u What is the impact on the community?
u Is prosecution a proportionate response?
u Do sources of information require protecting?
Discontinuance of proceedings
The responsibility for continuing with or terminating proceedings lies entirely with
the CPS. If the prosecutor considers the proceedings should not continue, the case
will be terminated at the earliest possible opportunity. Cases are kept constantly
under review and, if circumstances change, a decision may be made to discontinue
proceedings. This may be because there is insufficient evidence. Decisions to
discontinue are often highly controversial and may cause distress and dissatisfaction
to the victim. Since 2013, under the Victim’s Right to Review Scheme, victims of
criminal conduct are able to seek a review of decisions not to charge, to discontinue or
to otherwise terminate proceedings.
19.3.2 How does the CPS assess the public interest? The case of
assisted suicide
There has been considerable public debate in recent years about whether people
suffering from incurable diseases who wish to die can legally be assisted by a relative
or friend to end their own life. English law (in common with many other jurisdictions)
provides that an individual may legally end their own life, but under section 2(1) of the
Suicide Act 1961 (as amended by section 59 of the Coroners and Justice Act 2009), a
person can be prosecuted for committing ‘acts capable of encouraging or assisting the
suicide or attempted suicide of another person’.
In recent years, there has been a series of legal cases in several jurisdictions around
the world, challenging the law and seeking to achieve a change in the law so that
assisting a person to die will not lead to criminal prosecution. In England and Wales,
the Director of Public Prosecutions (DPP) has discretion to decide whether and when

prosecution of such cases is in the public interest under s.2(4) of the Suicide Act
1961, which provides that ‘no proceedings shall be instituted … except by or with the
consent of the Director of Public Prosecutions’.
Purdy
The last ever judgment given by the House of Lords, prior to the establishment of
the UK Supreme Court, was the ruling in the case of R (Purdy) v DPP [2009] UKHL 45.
Debbie Purdy suffered from incurable and progressive multiple sclerosis. She wanted
her husband to help her to travel to the Dignitas clinic in Zurich to end her life, but
she was concerned that if he did so he might be prosecuted after her death. She felt
that a literal interpretation of the wording of the Act might lead to prosecution and
she therefore brought a case against the DPP seeking clarification about whether
her husband would be prosecuted. Purdy argued that the lack of transparency in the
application of prosecutorial policy infringed her right to respect for private life under
Article 8 of the ECHR (Purdy, para.11).
The House of Lords agreed that lack of clarity about how the DPP exercised his
discretion infringed Article 8 and said that the DPP should issue guidance that would
help people to know the circumstances that would lead to someone being prosecuted
for helping someone to end their life. Lord Hope emphasised the conflict in public
opinion on this issue, the need to only prosecute when it is in the public interest and
the need for consistency in the exercise of the DPP’s discretion:
Consistency of practice is especially important here. The issue is without doubt both
sensitive and controversial. Many people view legally assisted suicide as an appalling
concept which undermines the fundamental human right to life itself. On the other hand
there are those, like Ms Purdy, who firmly believe that the right to life includes the right to
end one’s own life when one can still do so with dignity. Crown prosecutors to whom the
decision-taking function is delegated need to be given the clearest possible instructions
as to the factors which they must have regard to when they are performing it. The police,
who exercise an important discretion as to whether or not to bring a case to the attention
of the Crown prosecutors, need guidance also if they are to avoid the criticism that their
decision-taking is arbitrary. Important too is the general policy of the law that the Attorney
General and the Director only intervene to direct a prosecution when they consider it in
the public interest to do so.
(para.46)
New assisted suicide policy

In February 2010, the CPS published its ‘Policy for prosecutors in respect of cases of
encouraging or assisting suicide’. This sets out 16 public-interest factors that would
tend to favour a prosecution (para.43) and six public-interest factors that would tend
not to favour a prosecution (para.45). The policy was broadly welcomed as a response
to the Purdy case. In a speech in December 2013, the outgoing DPP, Sir Keir Starmer,
explained how the guide had worked:
[T]he thrust of the final guidelines is reasonably clear … broadly speaking if the victim
has a clear and settled intent to commit suicide and if the suspect is wholly motivated
by compassion and has not persuaded the victim to commit suicide, the likelihood of a
prosecution is low. The guidelines, as I say, have been in force since February 2010 and
contrary to views expressed by a number of people they work very well in practice.
(Legal Action Group Annual Lecture 2013)
Nicklinson
A landmark case which raised similar issues is the case of Nicklinson, which was heard
by the UK Supreme Court (R (on the application of Nicklinson) v Ministry of Justice [2014]
UKSC 38). Mr Nicklinson suffered a stroke in June 2005 which caused ‘locked-in’
syndrome (complete paralysis but his mind was working perfectly). His condition was
not life threatening and he had a reasonable expectation of living for years afterwards.
In 2007, he decided to end his own life, but he would only have been able to do so by
refusing all food and liquids. He wanted a doctor to end his life, but could not request
that assistance while the doctor was likely to face a charge of murder or assisted

suicide. Having failed to persuade the courts in various legal actions, Mr Nicklinson
died of pneumonia in August 2012 after refusing nutrition, fluids and medical
treatment. His wife continued the case and was joined by Mr Lamb (a man paralysed
in an accident). Another case heard at the same time was that of AM (also referred to
as ‘Martin’), who was unable to speak and virtually unable to move. He found his life
intolerable and had made up his mind that he wanted to die. Because of his disability,
he was unable to do so without assistance and was wholly reliant on his professional
carers. Martin argued that:
1. the ‘Policy for prosecutors in respect of cases of encouraging or assisting suicide’

was an unjustified interference with his Article 8 right under the ECHR, because the
consequences of the policy for the people whose assistance Martin sought were
insufficiently certain; and
2. the policy disproportionately interfered with his Article 8 right, because it

discouraged the assistance Martin sought.
The DPP argued that the policy is sufficiently clear and that it is not possible to
guarantee that certain persons would not be prosecuted for assisting or encouraging
someone to commit suicide. To do so would, allegedly, cross ‘the line of constitutional
propriety’.
Dismissing the appeal, a majority of seven to two Supreme Court Justices held that
they did not have the jurisdiction to change the law on assisted suicide. They also
unanimously held that the guidance on assisted suicide was lawful. The case was
then taken to the European Court of Human Rights, which declared the cases to be
inadmissible and therefore declined to consider the merits of the cases (Nicklinson and
Lamb v UK [2015] ECHR 709).
Later developments
Following the Supreme Court decision in Nicklinson, the DPP clarified an aspect of
the policy on the prosecution of assisted suicide, in respect of situations where the
suspect was a doctor or other healthcare professional and the victim was in their
care. The amendment did not alter the words of the guidance but emphasised the
requirement that the victim was in the suspect’s care and added a footnote explaining
that it was necessary to consider whether the suspect could have exerted influence
over the victim.
This was challenged by way of judicial review of the policy in R (on the application of
Kenward) v DPP [2015] EWHC 3508 (Admin). The claimants were a severely disabled
woman, and her husband and carer. They were concerned that the amendment would
make it easier for doctors to escape prosecution for the unwanted death of a patient
not in their care but who had been put under pressure by others to commit suicide.
The claimants, who argued that the amendment was contrary to the law as set out in
Nicklinson, were unsuccessful.
19.3.3 Evaluation of the CPS

The CPS has been subject to criticism at different times in its history, and has been
the focus of many reviews and investigations. Initially, the CPS was thought to be
underfunded and not able to attract lawyers of the highest quality. It was criticised for
prosecuting weak cases and failing to secure convictions in strong cases.
In 1998, a report into the CPS carried out by Lord Justice Glidewell (‘The review of
the Crown Prosecution Service’) raised concerns about the functioning of the CPS.
The report found that about 12 per cent of cases were discontinued. It identified
serious tension between the police and the CPS, with a tendency for each party to
blame the other if a case failed. To overcome these difficulties, the Glidewell report
recommended that CPS personnel should work in partnership with the police, sharing
responsibility for putting together and managing case files to ensure that adequate
evidence was available to support prosecution. Despite these recommendations,
criticisms of the CPS continued.

In 2002, the government’s ‘Justice for all’ White Paper criticised the CPS’s record on
prosecutions. It said that the CPS had to discontinue 13 per cent of all cases passed to
it by the police because of lack of evidence and witnesses being unwilling or unable
to give evidence. The government estimated that over £80 million was being wasted
each year as a result of adjournment of cases in court, as well as delays and ‘cracked’
trials at the magistrates’ courts and the Crown Court. (‘Cracked trials’ are those
where the defendant pleads guilty to the charge on the day of the trial after time and
trouble have been spent gathering the evidence necessary to mount a full trial.) In the
government’s view, these shortcomings were largely due to inadequate preparation
for trial. There was also criticism of inadequacies in the files that had been compiled by
the police, leading to a breakdown in trials and justice not being done.
The recommendations included giving the CPS more responsibility for determining
the charge in cases, and a package of reforms to improve case preparation and ensure
a closer working relationship between the police and the CPS, including through
co-location. It was believed that this would lead to better-prepared cases, with fewer
discontinued and better conviction rates. Following the ‘Justice for all’ White Paper,
the Criminal Justice Act 2003 gave the CPS greater involvement in the decision to
prosecute and the choice of the charge.
There continue to be criticisms of the CPS, and the issue of disclosure of evidence
by the CPS has recently been particularly problematic. The disclosure process in
a criminal trial requires the CPS (in conjunction with the police) to provide the
defendant with any material which could reasonably be considered to assist the
defendant’s case in court, as set out in the Criminal Procedure and Investigations Act
1996. This is an ongoing duty that the CPS must keep under review throughout the
legal process in the case, and helps to ensure that trials are fair. Some of the problems
stem from the fact that, in the age of modern technology, there can be a very large
amount of data that prosecutors have to handle, to determine its worth as evidence.
Concerns were raised following a number of cases which collapsed, or guilty verdicts
which were overturned on appeal due to errors in the disclosure process. The most
high-profile case was that of Liam Allan, in which crucial evidence was not disclosed
until very late in the proceedings, at which point the prosecution case collapsed. Many
of the cases where disclosure issues have been noted were rape and sexual assault
cases, but the Justice Committee states that ‘disclosure errors happen in all types of
cases, both complex cases in the Crown Court, and volume magistrates’ court cases
covering, not just rape cases, but all crime types’. This has resulted in a number of
reports, which have been critical of the current disclosure process:
u CPS and Metropolitan Police Service ‘A joint review of the disclosure process in
the case of R v Allan: findings and recommendations for the Metropolitan Police
and CPS London’, January 2018, at www.cps.gov.uk/sites/default/files/documents/
publications/joint-review-disclosure-Allan.pdf
u Justice Committee ’Disclosure of evidence in criminal cases’, July 2018, at https://

publications.parliament.uk/pa/cm201719/cmselect/cmjust/859/85902.htm
u Attorney General ‘Review of the efficiency and effectiveness of disclosure in the

criminal justice system’, November 2018, at https://assets.publishing.service.gov.
uk/government/uploads/system/uploads/attachment_data/file/756436/Attorney_
General_s_Disclosure_Review.pdf The Justice Committee finds these to be serious
issues, hampering the effective operation of the criminal justice system:
Problems with the practice of disclosure have persisted for far too long, in clear sight
of people working within the system. Disclosure of unused material sits at the centre
of every criminal justice case that goes through the courts and as such it is not an issue
which can be isolated, ring fenced, or quickly resolved. These problems necessitate a
concerted, system wide and ongoing effort by those involved, with clear leadership
from the very top.

1. What legal powers are given to the police by PACE?
2. What is the difference between a breach of a PACE statutory provision and a

breach of a PACE Code?
3. Name three statutory powers of stop and search.
4. What criticisms have been made of the way police use powers of stop and
search? What is the evidence for and against these criticisms?
5. What are the requirements for a lawful arrest under s.24 of PACE?
6. What were thought to be the disadvantages of the police having responsibility

for the conduct of prosecutions prior to 1986?
7. What are the main factors that the CPS must take into account in deciding
whether or not to proceed with a prosecution?
8. What are the factors that the CPS must take into account in deciding whether it
is in the public interest to prosecute someone for assisting another to end their
life?
9. What were the facts and the decision in R (on the application of Nicklinson) v
Ministry of Justice [2014] UKSC 38?
10. What criticisms have been made of the CPS? Do you think these criticisms are
justified? Give reasons for your answer.

Briefly describe the criminal justice system and discuss how the Crown Prosecution
Service assesses the public interest.

This question requires:
u a short description of the criminal justice system
u a discussion of how the Crown Prosecution Service evaluates the ‘public interest’
requirement when exercising its discretion about whether or not to prosecute.
Here are some of the aspects you could discuss:
1. Describe the criminal justice system – see Chapter 18 of the module guide.
You might describe the role of the police as part of the criminal justice
system in preventing, investigating and recording crime, and detaining
suspects. This would lead on to an explanation of the role of the Crown
Prosecution Service (CPS) once a defendant is charged with a crime by the
police. The next stage of the system is the route a defendant would take
through the criminal court system – magistrates’ courts and Crown Courts –
and the differences between summary, either-way and indictable offences.
2. Explain the CPS and the decision to prosecute, how the public interest test
fits with the overall decision to prosecute and the place of the evidential
test. The CPS is independent and must take decisions fairly, objectively and in
accordance with the ECHR. You might choose to briefly outline why the CPS
was created – prosecution decisions before this were taken by the police.
3. The main focus of the question should be on the CPS’s decision-making as to

whether prosecution is in the public interest. This requires consideration of
the public interest test, including issues such as: how serious is the offence?
What is the level of culpability of the suspect? What are the circumstances of
the harm caused to the victim?, etc.
4. A good illustration of how the CPS assesses the public interest is that of assisted
suicide, and you could discuss R (Purdy) v DPP, R v Nicklinson and developments
in the DPP’s policy on the public interest test in assisted suicide cases. You
could discuss whether or not you agree with the way the CPS has assessed the
public interest test in these cases, giving reasons for your arguments.

20 The jury
Contents
20.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
20.2 Jury decision-making in criminal trials . . . . . . . . . . . . . . . . . 249
20.3 Selection of the jury . . . . . . . . . . . . . . . . . . . . . . . . . . 252
20.4 Jury misconduct and the internet . . . . . . . . . . . . . . . . . . . . 254
20.5 Reform of the law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256
20.6 Race and jury fairness . . . . . . . . . . . . . . . . . . . . . . . . . . 257
20.7 The decline of the jury trial? . . . . . . . . . . . . . . . . . . . . . . 259

Learning outcomes
u explain the function of the jury in criminal trials
u discuss the issue of racial bias and fairness in jury decision-making
u discuss the law on juror misconduct
u discuss arguments about the possible decline in jury trials.
Essential reading
¢ Lord Devlin ‘Trial by jury’, Hamlyn Lectures, eighth series (London: Stevens &
Son, 1956), at https://socialsciences.exeter.ac.uk/media/universityofexeter/
schoolofhumanitiesandsocialsciences/law/pdfs/Trial_by_Jury.pdf
¢ Lady Justice Hallett ‘Trial by jury – past and present’, Blackstone Lecture, 20 May
2017, at www.judiciary.uk/wp-content/uploads/2017/05/hallett-lj-blackstone-
lecture-20170522-1.pdf
¢ Law Commission ‘Contempt of court: juror misconduct and internet

publications’, 9 December 2013, Chapters 3 and 4, at www.lawcom.gov.uk/
project/contempt-of-court-juror-misconduct-and-internet-publications/
¢ Daly, G. and R. Pattenden ‘Racial bias and the English criminal trial’, Cambridge
Law Journal 64(3) 2005, pp.678–710 (available in Westlaw through the Online
Library).
¢ Thomas, C. ‘Ethnicity and the fairness of jury trials in England and Wales
2006–2014’, Criminal Law Review 11 2017, pp.860–76, at http://discovery.ucl.
ac.uk/10024639/1/Thomas_CherylThomas%20revised%20article.pdf
¢ Thomas, C. ‘Avoiding the perfect storm of juror contempt’, Criminal Law Review
6 2013, pp.483–503 (available in Westlaw through the Online Library). There is
also a summary of the findings, at www.ucl.ac.uk/judicial-institute/sites/judicial-
institute/files/jurorcontempt.pdf
¢ Thomas, C. ‘Diversity and fairness in the jury system’, Ministry of Justice Research
Series 2/07, 2007, at www.ucl.ac.uk/judicial-institute/sites/judicial-institute/files/
diversity-fairness-in-the-jury-system.pdf

¢ R v Mirza [2004] UKHL 2, [2004] AC 1118.
¢ AG v Scotcher [2005] UKHL 36, [2005] 1 WLR 1867.
¢ AG v Dallas [2012] EWHC 156 (Admin), [2012] 1 WLR 991.
¢ R v Ford [1989] 3 All ER 445.
¢ R v Smith [2003] EWCA Crim 283.
¢ Sander v UK [2000] ECHR 194 (available at http://hudoc.echr.coe.int/

eng?i=001-58835).
¢ R v Twomey [2009] EWCA Crim 1035, [2010] 1 WLR 630.
Further reading
¢ Slapper and Kelly, Chapter 14 ‘The jury’.
¢ Thomas, C. ‘Are juries fair?’, Ministry of Justice Research Series 1/10, February
2010, at www.justice.gov.uk/downloads/publications/research-and-analysis/
moj-research/are-juries-fair-research.pdf There is also a summary of the
findings, at www.ucl.ac.uk/judicial-institute/sites/judicial-institute/files/
arejuriesfair.pdf
¢ Report of the Royal Commission on Criminal Justice (Cm 2263, 1993) Chapter 8 ‘The
trial’, pp.131–33, at https://assets.publishing.service.gov.uk/government/uploads/
system/uploads/attachment_data/file/271971/2263.pdf

Legal system and method 20 The jury page 249
¢ Fitzpatrick, P. ‘The British jury: an argument for the reconstruction of the little
parliament’, Cambridge Student Law Review 6(1) 2010, pp.1–15 (available through
Westlaw in the Online Library).
¢ Kirk, D. ‘The jury’s out’, Journal of Criminal Law 77(3) 2013, pp.173–76 (available
through Westlaw in the Online Library).
¢ May, R. ‘Jury selection in the United States: are there lessons to be learned?’,
Criminal Law Review 1998, Apr, 270–273
¢ Crown Prosecution Service ‘Non-jury trials’, at www.cps.gov.uk/legal/l_to_o/

non_jury_trials/
20.1 Introduction
A jury is a group of citizens drawn at random from the population to hear criminal
cases (or, very rarely, some civil cases) and to decide, on the basis of the evidence
heard, whether the defendant is guilty or not guilty (criminal trial) or liable (civil trial).
The jury’s decision is called ‘the verdict’. The usual number of jurors is 12, although
there are some adjustments to this for certain kinds of proceedings. The fundamental
purpose of the use of juries is to increase lay participation in the justice system, thus
enhancing the impartiality of the system and public confidence in its fairness.
The use of juries to give verdicts at trials is a feature of common law systems, although
their use varies from jurisdiction to jurisdiction. Civil law jurisdictions rarely use juries
in the same way, but it is relatively common for judges in civil law jurisdictions to sit
with lay assessors in order to increase the impartiality of judicial decision-making and
to increase public confidence in the fairness of the justice system (see more on the
jury system in other jurisdictions at the end of the chapter).
This chapter will consider the role and function of the jury and how the jury is
appointed. There have been long-standing concerns that juries are not representative
of society, to the extent that they do not properly represent the race and ethnic
diversity of British society, and this chapter will look at race and jury fairness. Finally,
you will learn about jury misdemeanours, in particular those that relate to jurors’ use
of the internet.
20.2 Jury decision-making in criminal trials
20.2.1 History of the jury

Use of the jury in the English common law system has a long history. Although the use
of ordinary citizens to decide the fate of individuals charged with criminal offences
goes back more than 2,000 years, to Ancient Athens and Rome, the foundation of the
modern jury originated in England. During the 13th century, juries were used routinely
in criminal cases following the ending of trial by ordeal and the right under the Magna
Carta in 1215 of a person to be tried by ‘the lawful judgment of his peers’. Although
originally the role of a juror was to provide local knowledge and information about the
crime rather than decide on guilt or innocence, by the 15th century the use of juries
had changed and they had evolved into decision-makers or deciders of fact.
20.2.2 Underpinning philosophy

The use of juries allows members of society, rather than the government or
professional judiciary, to decide whether a person has committed an alleged crime.
This is the idea of judgment by peers. It is thought that the use of juries performs a
social as well as a judicial function. The judicial function is to determine, solely on the
basis of the evidence heard, whether the defendant is guilty or not guilty. The broader
social function of juries – which are independent of interference by government,
the judiciary or anyone else – is to increase public confidence in the fairness of the
criminal justice system, to provide an independent buffer between the citizen and the

state and to offer protection against laws regarded as oppressive. To this extent, the
jury has been regarded as a democratic institution which supports the rule of law. Trial
by jury is highly valued in the UK by the ordinary citizen, and there is a considerable
amount of concern whenever there is a suggestion that jury trial might be restricted.
In his Hamlyn Lectures in 1956 on the subject of ‘Trial by jury’, the distinguished judge
Lord Devlin argued that the jury represents protection against tyranny:
The first object of any tyrant in Whitehall would be to make Parliament utterly subservient
to his will; and the next to overthrow or diminish trial by jury, for no tyrant could afford to
leave a subject’s freedom in the hands of twelve of his countrymen. So that trial by jury is
more than an instrument of justice and more than one wheel of the constitution: it is the
lamp that shows that freedom lives.
(p.164)
In the USA, the constitutional right to trial by jury was well-explained by Justice Byron
White of the US Supreme Court in the case of Duncan v Louisiana in 1968 as follows (at
p.156):
A right to jury trial is granted to criminal defendants in order to prevent oppression by

the Government … Providing an accused with the right to be tried by a jury of his peers
gave him an inestimable safeguard against the corrupt or overzealous prosecutor and
against the compliant, biased, or eccentric judge. Beyond this, the jury trial provisions
in the Federal and State Constitutions reflect a fundamental decision about the exercise
of official power – a reluctance to entrust plenary powers over the life and liberty of the
citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our
State and Federal Governments in other respects, found expression in the criminal law in
this insistence upon community participation in the determination of guilt or innocence.
Although a requirement for trial by jury is not one of the essential elements of a fair
trial under Article 6 of the ECHR, there are some who think that the right to jury trial
ought to be included in Article 6. On the other hand, there are critics of the jury who
point out that the jury does not always operate fairly and there have been a number
of cases in which the European Court of Human Rights has ruled that aspects of
jury selection and behaviour have breached the requirements of impartiality and
independence under Article 6. Sanders et al. (2010, p.593) argue that it would be
wrong to assume that juries always operate in accordance with due process principles:
‘It is necessary to question whether juries in practice set aside their prejudices, seek
hard evidence of guilt, and apply the appropriate standard of proof’. Some of these
issues, and the extent to which jury behaviour always meets the requirements of
independence and impartiality, are discussed in the following sections.
20.2.3 When are juries used in the justice system?

Juries are used in the Crown Court for criminal trials on indictment. A panel of 12 jurors
will be used. Trials on indictment in the Crown Court represent only around 3 per cent
of all criminal trials – the vast majority being dealt with in the magistrates’ courts. In
practice, even in the 3 per cent of criminal cases dealt with in the Crown Court, the
majority of defendants plead guilty at trial. Thus, juries are only used in around 1 per
cent of all criminal cases. Despite the small proportion of criminal cases in which juries
are used, criminal jury trials have very high public significance because these are the
most serious, and often the most complex, criminal cases dealt with in the criminal
justice system. Media attention paid to serious criminal trials is generally quite intense
and jury verdicts are often the subject of press comment and, sometimes, criticism.
Juries may be used in civil cases in the High Court Queen’s Bench Division for cases
concerning fraud, false imprisonment or malicious prosecution by the police (this
is governed by the Senior Courts Act 1981, which gives a ‘qualified right’ to jury trial
in such cases). In these cases, panels of 12 jurors will be used. The use of juries in civil
trials has been reducing steadily since the 19th century and now juries are used only
rarely.
Juries may be used in coroner’s courts to investigate the cause of sudden deaths
in prison, in police custody or as a result of police action. They are also used to

investigate certain industrial and other accidents. When a jury is used in coroners’
inquests, a panel of between seven and 11 jurors is used.
Although juries are used for only a minority of criminal cases in the Crown Court and
hardly at all in civil cases, debate about juries arouses strong feelings. As Thomas
(2007, p.2) remarks:
One of the most remarkable aspects of the jury system in England and Wales is that while
juries now decide only a small fraction of all criminal cases and almost no civil cases, the
right to trial by jury continues to be a highly charged subject. Most discussion of jury
policy generates public attention, and virtually every proposal to restrict trial by jury in
the last half century has provoked widespread and often impassioned opposition.
20.2.4 Function and independence of the jury

The role of the modern jury is to decide matters of fact, and the decision of the jury
cannot be criticised or penalised by the judge if he or she disagrees with it. The jury is
the arbiter of facts in a criminal trial, while the judge is responsible for matters of law.
Much of the time, in fact, the jury’s decision is based on a combination of both law
and fact. Judges can direct juries to acquit the defendant where there is insufficient
evidence, but cannot direct juries to convict. The judge can, however, sum up to
the jury in such a way so as to make it clear that there is only one decision they can
realistically come to and that it would be perverse to reach a not-guilty verdict.
This principle of the independence of the jury was established in the 17th century in
Bushell’s Case (1670) Vaughn 135. The case concerned the right of Quakers (a religious
group) to preach in public, expressing views that were contrary to those of the Church
of England. The trial of the preachers, William Penn and William Mead, was highly
publicised and closely watched by the public, the government and the monarchy.
During the trial, the judge urged the jury to return guilty verdicts. Despite this, the jury
returned verdicts of not guilty.
At that time, jurors could be fined and imprisoned if it was decided that they had
returned an ‘erroneous’ verdict. Believing the jurors were wrong in refusing to convict
Penn and Mead, the trial judge ordered that the jurors should be fined and imprisoned
until they paid off their fines. Although the jurors were eventually released, one juror,
Edward Bushell, appealed against being imprisoned. The Court of Common Pleas
ruled that jurors cannot be punished for their decisions. The Court’s ruling stated that
jurors must be free from coercion to decide a case independent from any intimidation
or pressure from the government or the court. This principle continues today and
guarantees the power and freedom to acquit individuals wrongly prosecuted by the
government.
20.2.5 Majority verdicts

Until 1967, juries were required to deliver unanimous verdicts. This requirement meant
that juries would often be kept together for long periods and a single person could
prevent the jury from returning a verdict (there is a good illustration of this in the
film Twelve Angry Men). If the jury was incapable of reaching a unanimous verdict, they
would have to be discharged and a retrial ordered.
Since 1967, it has been possible for juries to return a majority decision. The jury must
first deliberate for at least two hours and if by then they have not reached a verdict,
the judge can call them back into the courtroom and direct that he or she can now
accept a majority verdict. Where there is a full jury of 12, the verdict can be 10:2 or 11:1.
If for any reason (say, ill health) the jury has fallen below 12, then a jury of 11 can return
a 10:1 verdict or, with 10 jurors, 9:1. If the jury is nine or fewer, the verdict must be
unanimous.
The purpose of introducing majority verdicts was to avoid a situation in which a single
member of a jury could be intimidated or bribed to return a particular decision.
However, interference with the jury continues to be a concern and measures have
been introduced to deal with this in the Criminal Justice Act 2003 (discussed below).
Only about one in five convictions by juries are by a majority verdict (Thomas, 2010).

20.3 Selection of the jury
20.3.1 Qualifications and eligibility for jury service

Prior to 1972, a citizen had to be a property owner to qualify for jury service. This meant
that women and young people were underrepresented on juries because they were
less likely to own property than older men.
However, the Juries Act 1974 now governs basic eligibility for jury service, which
requires only that a person is aged between 18 and 75 years of age (raised from 70
in 2016), is registered to vote on the government electoral register and has been
ordinarily resident in the UK for at least five years since their 13th birthday.
People who are ‘disqualified’ under the Juries Act 1974 (as amended) may not serve
as a juror. Certain criminal convictions will disqualify members of the public from
becoming a juror either for a period of some years or permanently if imprisoned for a
lengthy sentence. A judge has the ability to discharge a person from jury service if it is
believed that they lack the capacity to cope with the information needed for the trial.
This may occur if the person cannot sufficiently understand English, or there may be
some disability that will make the person unsuitable to sit as a juror.
20.3.2 How are juries selected?

The principle of jury selection is that juries should be a representative group of
peers. Juries are selected at random from the electoral register by the Jury Central
Summoning Bureau. The principle of random selection is thought to be the simplest
way of achieving a broadly representative jury. The jury that will hear a particular case
will be chosen by a court official and taken to the courtroom to enter an oath. Those
selected will not know which trial they will serve on until they have been sworn in. This
method is used to make sure jurors have no prejudgements regarding the case.
Before April 2004, certain professionals, including doctors, members of the legal
profession, police and judiciary, were either automatically excused from jury service if
they did not want to serve or were ineligible to serve as jurors. The Criminal Justice Act
2003 abolished this exception and now all eligible citizens are expected to undertake
jury service unless it would cause personal difficulties, in which case they may ask
to be ‘excused’ or for their jury service to be postponed to a later date. It is up to the
discretion of the court whether or not to grant excusal.
There is no system of jury selection in the English courts. This is in contrast to the legal
system in the USA, where there can be a lengthy system of jury selection, during which
the judge and legal representatives ask the potential jurors questions and can then
strike them from the pool of jurors (see further discussion of the US jury system below).
20.3.3 Jury decision-making and secrecy

While there is a general rule that courts should give reasons for their decisions, this is
not the case for juries, who are not required to give reasons for their verdicts. As Lord
Devlin noted in his Hamlyn Lectures on the jury in 1956:
Judges give their reasons, either so as to satisfy the parties or because they themselves
want to justify their judgments. Even arbitrators detail their findings of fact. The jury just
says yes or no. Indeed, it is not allowed to expand upon that and its reasons may not be
inquired into. It is the oracle deprived of the right of being ambiguous. The jury was in its
origin as oracular as the ordeal: neither was conceived in reason: the verdict, no more than
the result of the ordeal, was open to rational criticism. This immunity has been largely
retained and is still an essential characteristic of the system.
(p.14)
Not only are juries not required to give reasons for their decisions, but it is an offence
to obtain or disclose such information. The Criminal Justice and Courts Act 2015 added
a new s.20D into the Juries Act 1974, which provides that:

(1) It is an offence for a person intentionally—
(a) to disclose information about statements made, opinions expressed, arguments

advanced or votes cast by members of a jury in the course of their deliberations in
proceedings before a court, or
(b) to solicit or obtain such information,
subject to the exceptions in sections 20E to 20G.
The confidentiality of jury deliberations and the failure of the jury to give reasons for
its decisions has been challenged in the European Court of Human Rights. Is the failure
to give reasons compatible with the right to a fair trial under Article 6 of the ECHR? The
European Court of Human Rights has held that the duty to give reasons for a judicial
decision does not apply to juries and that the current system in England and Wales is
compliant with Article 6 of the ECHR. This was confirmed in Taxquet v Belgium (2012) 54
EHRR 26, where the Grand Chamber of the Court held that:
It follows from the case-law cited above that the Convention does not require jurors to
give reasons for their decision and that Article 6 does not preclude a defendant from
being tried by a lay jury even where reasons are not given for the verdict. Nevertheless, for
the requirements of a fair trial to be satisfied, the accused, and indeed the public, must
be able to understand the verdict that has been given; this is a vital safeguard against
arbitrariness
(at para.90)
This is provided that the other safeguards, such as the jury being properly directed, are
observed.
There have been several cases in which the domestic courts have considered whether
evidence about jury deliberations could be used on appeal. The case of R v Mirza [2004]
UKHL 2 concerned a Pakistani defendant who had come to the UK in 1988. During his
trial for indecent assault he had an interpreter to help him. The jury sent notes to
counsel asking why the defendant needed an interpreter. The defendant was convicted
on a 10:2 majority. Six days after the jury verdict, one juror wrote to the defendant’s
counsel alleging that from the start of the trial there had been a ‘theory’ in the jury
room that the use of an interpreter was a ‘ploy’ and that the jury had been influenced
by racial prejudice. The defendant appealed against conviction and the Court of
Appeal had to decide whether it could consider evidence from a juror about what was
discussed in the jury room that would demonstrate bias on the part of the jury.
The Court of Appeal held that it was bound by the common law rule that it could
not breach the secrecy of the jury room, but it certified two questions of law to be
considered by the House of Lords. The questions for the House of Lords were: first,
whether the common law prohibition on the admission of evidence of the jury’s
deliberations should prevail even if the Court of Appeal is presented with a statement
from a juror suggesting jury bias in breach of Article 6 of the ECHR; and, second,
whether section 8 of the Contempt of Court Act 1981 (which was then the law in force
in relation to jury secrecy) was compatible with Article 6, to the extent that it prohibits
the admission of such evidence of bias. A majority of the House of Lords held that the
common law rule should prevail and that section 8 of the Contempt of Court Act 1981
was not incompatible with Article 6. Lord Hope said (at para.61):
[T]he law … recognises that confidentiality is essential to the proper functioning of

the jury process, that there is merit in finality and that jurors must be protected from
harassment. These requirements too are directed to the essential object of maintaining
public confidence in this mode of trial. So the general rule is that, after the verdict has
been returned, evidence as to things said by jurors during their deliberations in private is
inadmissible.
In the case of AG v Scotcher [2005] UKHL 36, [2005] 1 WLR 1867, a juror, Keith Scotcher,
was found guilty of contempt of court as a result of disclosing information about jury
deliberations. Following a trial in which two brothers were convicted, Scotcher wrote

to the defendants’ mother to urge her to consider an appeal. His letter disclosed
statements, opinions, arguments and votes of the members of the jury in the course
of their deliberations, and did so with the intention of proving that there had been a
miscarriage of justice. Scotcher then appealed against his conviction for contempt on
the ground that the disclosure was to prevent a miscarriage of justice and that s.8(1)
of the Contempt of Court Act was incompatible with Article 10 of the ECHR (freedom
of expression). This argument was rejected by the House of Lords and the appeal was
dismissed. The Court held that Scotcher could have brought his concerns to the court,
but instead he had disclosed them, after the verdict, to a third party.
20.4 Jury misconduct and the internet

Jurors must decide a case based solely on the evidence presented in court; they
are not allowed to carry out their own research or to rely on any other information
they may find out while the trial is in progress. There has always been a risk of juror
misconduct through jury members being influenced by external information – for
example, by something they have read in the press. The problem has become much
more acute with the rise in the use of information technology and widespread use of
the internet. Indeed, the internet has had a profound impact on a juror’s ability and
opportunity to obtain or to communicate extraneous information relating to the trial
in which they are involved. Cheryl Thomas (2013) argues that:
One specific type of improper conduct, jurors’ improper use of the internet to look for
information about their case or communicate information about the case to a third party,
is currently the most pressing area of concern and has clear implications for fair trials in
this as well as other jurisdictions.
Thomas’s research found that:

• Of jurors questioned, 23 per cent were confused about the rules on internet use;
62 per cent of jurors questioned had not heard of recent prosecutions of jurors for
misconduct and up to 7 per cent of jurors admitted to having used the internet to look
for information which may be prohibited.
• Jurors who were confused about permitted internet use had different types of
misconceptions: 16 per cent of these jurors believed they could not use the internet
for any reason at all while serving as a juror, 5 per cent believed there was no
restriction at all on their use of the internet during the trial and 2 per cent believed
they could look for information about the case as long as they did not let it affect their
judgment.
• In addition, 3 per cent of jurors shared their experience of jury service on social
networking sites; 1 per cent blogged or chatted online about doing jury service; 7 per
cent looked up information about prosecution and/or defence teams; a further 7 per
cent looked up information about the judge; 6 per cent looked up information about
legal terms used in the case, and 1 per cent visited the crime scene online.
In order to better inform jurors of the rules on juror conduct, including those relating
to social media, a revised juror notice, ‘Your legal responsibilities as a juror’, was
introduced in March 2018 (available at www.justice.gov.uk/courts/procedure-rules/
criminal/docs/october-2015/j001-eng.pdf). A Criminal Practice Direction requires
judges not only to direct the jury as to their responsibilities, but also to provide a
copy of the notice to each juror. The evidence from the pilot introduction of the new
juror notice suggested that jurors’ understanding of their legal responsibilities has
increased substantially as a result (see Attorney General ‘Response to call for evidence
on the impact of social media on the administration of justice’, March 2019, para.2.6,
at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/
attachment_data/file/783627/Call_For_Evidence_05.03.2019_v2.pdf).
AG v Dallas
The modern problem of the use of the internet is illustrated by the case of AG v Dallas
[2012] EWHC 156 (Admin). A juror, Theodora Dallas, was given a six-month prison
sentence for contempt of court after it emerged that, during the course of the trial,

she had carried out internet research on the defendant, who was accused of a violent
crime involving torture of the victim. During her internet research on the defendant,
Dallas discovered that he had previously been convicted of a rape involving violence.
In his directions to the jury at the end of the trial, the judge reminded the jurors that
they were only to act on the evidence that they had heard during the trial and not to
speculate or guess about what other evidence there might be. However, during jury
deliberations, Dallas mentioned what she had found out on the internet about the
defendant’s previous conviction. The jury could not reach a decision on the first day
and, before they reconvened the next day, another juror reported to a court official
that Dallas had found out information about past convictions on the internet. The
judge was informed and he discharged the jury, warning that there might be a police
investigation.
During Theodora Dallas’s trial, the Lord Chief Justice explained how internet research
interfered with due process. He said:
By [disobeying the judge’s order not to look on the internet] she did not merely risk
prejudice to the due administration of justice, but she caused prejudice to it. This was
because she had sought to arm and had armed herself with information of possible
relevance to the trial which, although not adduced in evidence, might have played its
part in her verdict. The moment when she disclosed any of that information to her fellow
jurors she further prejudiced the administration of justice. In the result, the jury was
rightly discharged from returning a verdict and a new trial was ordered. The unfortunate
complainant had to give evidence of his ordeal on a second occasion. The time of the
other members of the jury was wasted, and the public was put to additional unnecessary
expense. The damage to the administration of justice is obvious.
(para.38)
In imposing a custodial sentence on Dallas, the Lord Chief Justice took the opportunity
to underline the danger to the integrity of the trial process presented by jurors making
improper use of the internet to learn things about the defendant that have not been
used in evidence at trial and which could unfairly influence their decision. He said:
Misuse of the internet by a juror is always a most serious irregularity, and an effective
custodial sentence is virtually inevitable. The objective of such a sentence is to ensure that
the integrity of the process of trial by jury is sustained.
AG v Davey and AG v Beard

The Dallas case was followed by two further cases, AG v Davey and AG v Beard [2013]
EWHC 2317 (Admin), [2013] All ER (D) 391. In a combined judgment, the High Court
found the jurors to be in contempt of court. Davey had researched the defendant
on the internet while serving as a juror, and, in a different trial, Beard had tweeted
information about the case while serving as a juror in a case concerning a paedophile.
In its judgment on the cases, the Court held that, although judges try to warn jurors
not to use the internet or social networking sites for any purpose in relation to the
case, judges do not use consistent language and jurors do not seem to be clear in their
understanding of what is permitted and what is prohibited.
Solicitor General v Stoddart

In Solicitor General v Stoddart [2017] EWHC 1361 (QB), a juror who admitted that he had
conducted internet research into the background of a defendant during a burglary
trial, which caused the conviction to be quashed, received a four-month prison
sentence (suspended for 12 months). The jury had watched a DVD which contained
a specific warning to jurors against conducting internet research; they had also seen
warning notices in the jury room and received a warning from the judge not to carry
out such research. Despite this, Mr Stoddart, one of the jurors, sought information
about the defendant’s prior convictions by carrying out internet research. In the
sentencing proceedings for contempt of court, Sir Brian Leveson noted that:

The integrity of the criminal justice system requires all who participate within it to observe
the highest standards of behaviour and so to ensure open, transparent and obvious
compliance with all that due process requires. Should circumstances arise in which the
public could no longer have confidence [in] the performance of any part of the system, our
mechanisms for resolving the determination of guilt of those accused of crime will collapse
… Breach of these requirements, therefore, is and must be taken very seriously.
(paras.1–2)
20.5 Reform of the law

As a result of concern about jury misuse of the internet and cases such as Dallas,
the Criminal Justice and Courts Act 2015 created four new criminal offences of juror
misconduct. There offences were based on recommendations made by the Law
Commission report in December 2013 into juror misconduct and internet publications.
The Commission took the view that the current law and procedure was problematic
because of the lack of clarity for jurors and the lack of consistency across courts. A
statutory offence would be consistent across courts and would clarify the law.
In the wake of the Law Commission’s recommendations, a variety of reforms were

introduced to broadly address the impact of new technologies and individual juror
conduct regarding the access and disclosure of information relating to jury service
which would be in contempt of court. The reforms included the repeal of s.8 of the
Contempt of Court Act in England and Wales.
The reforms implemented by the Criminal Justice and Courts Act 2015 created a range
of new indictable offences which were thereby inserted into the Juries Act 1974. The
specific offences address:
u research by jurors (s.71, offence 20A)
u sharing research with jurors (s.72, offence 20B)
u jurors engaging in other prohibited content (s.73, offence 20C)
u disclosing the jury’s deliberations (s.74, offence 20D).
The types of research prohibited include seeking information about anyone involved
in the case (for example, the parties, witnesses, the legal team and the court staff)
and information on substantive law, procedural law and law of evidence. The types of
‘other prohibited conduct’ relate to jurors intentionally trying the case on information
other than that provided during the trial. The maximum penalty is two years’
imprisonment and/or a fine.
These provisions provide for possible defences when the disclosure may be in the
interests of justice. A juror with real concerns about specific issues affecting the
fairness of the deliberation process, such as the commission of offences or contempt,
can therefore make disclosures in certain situations.
Attorney-General’s report on the impact of social media

In September 2017, the Attorney General issued a Call for Evidence to evaluate if there is
a risk to the administration of justice in criminal trials from the use of social media and, if
so, whether the risk is increasing (see the resulting report, ‘Response to Call for Evidence
on the impact of social media on the administration of justice’, March 2019, at https://
assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/
file/783627/Call_For_Evidence_05.03.2019_v2.pdf). This followed a murder trial which
was halted after the judge decided that prejudicial comments online meant that the
defendants would not be able to have a fair trial. The aim of the Call for Evidence was
to collect evidence to establish the level of risk of social media, and whether any risk
identified can be adequately managed using the tools currently available.
The ‘Response to the Call for Evidence’, published in March 2019, concluded that in
fact the challenges that social media poses for the administration of justice are ‘not
unmanageable’. The report identified a number of themes (on p.2):

u Social media posts which are prejudicial or which identify those subject to
anonymity orders are not uncommon, and there is an added risk that this material
could be seen by jurors.
u Many social media users may be unaware of reporting restrictions and of what
would constitute a breach of an anonymity order or contempt of court.
u The judiciary generally have the tools to mitigate the effects of adverse social
media posts; however, these tools can delay the trial process.
Several means are suggested to deal with the problems that do exist. The report
proposes an increase in public legal education (including the revised juror notice,
discussed above, which was introduced as a result of evidence to the review);
developing guidance on contempt led by the Judicial Office to be used by judges,
lawyers and the public; and collaborative working with social media companies to
deal with unlawful social media posts.
20.6 Race and jury fairness

Public confidence in the fairness of the criminal justice system is thought to be
weakened if judges and jurors, as well as a high proportion of barristers and solicitors,
are overwhelmingly white and are not representative of the diversity of society.
In the 1980s, there were several attempts by judges to create multiracial juries
(R v Binns (1982) Crim LR 522, R v Thomas (1989) 88 Cr App R 370). However, the leading
case of R v Ford [1989] 3 All ER 445 established that judges were under no obligation
to empanel a multiracial jury. In this case, involving a black defendant, the trial judge
refused to empanel a multiracial jury and the accused was convicted of reckless
driving. He appealed against his conviction on the ground that the all-white jury was
not an impartial jury. On his appeal Lord Lane CJ gave judgment, intending it to provide
clear guidance to judges in the future. Lord Lane held that:
u a fair jury is a randomly selected jury; it is the responsibility of the Lord Chancellor
and not the trial judge to see that the jury is chosen randomly
u there is no principle of law or practice that a jury should be racially balanced. Lord
Lane concluded that:
However well-intentioned the judge’s motive might be, the judge has no power to
influence the composition of the jury and that it is wrong for him to attempt to do so. If it
should ever become desirable that the principle of random selection should be altered,
that will have to be done by way of statute and cannot be done by any judicial decision.
(p.875)
The issue of multiracial juries was considered by the Royal Commission on Criminal
Justice in 1993 (the Runciman Commission). The Commission recommended that, in
exceptional cases, the prosecution or defence should be able to insist that up to three
members of the jury are from ethnic minorities and that at least one is from the same
ethnic minority as the accused or victim. However, these recommendations were not
implemented by the government.
The review of criminal courts conducted by Lord Justice Auld in 2001 (see Chapter 18)
also considered the issue of multiracial juries and recommended that, where race was
an issue in an offence, it should be possible to select up to two ethnic-minority jurors.
Again, this recommendation was not implemented by the government.
In 2002, the then Labour Government published its proposed policy for significant
changes to aspects of the criminal justice process, designed to shift the balance in
criminal trials to make it easier to secure convictions of the guilty. Its White Paper
‘Justice for all’ (see Chapter 19) discussed Lord Justice Auld’s recommendations
regarding the possibility of empanelling multiracial juries. The government was
opposed to the recommendations for several practical reasons. In its view, selecting
multiracial juries would:

• undermine the fundamental principle of random selection and would not achieve a
truly representative jury of peers …
• place the selected minority ethnic jurors in a difficult position …
• generate tensions and divisions in the jury room …
• place undue weight on the views of specially selected jurors …
• place a new burden on the court to determine which cases should attract an ‘ethnic
minority quota’ and provide a ground for unmeritorious appeals.
(para.7.29)
When the Labour Government introduced its reforms to the criminal justice system,
in the Criminal Justice Act 2003, there was no provision for multiracial juries to be
empanelled.
After the implementation of the HRA 1998, the issue was raised again in the case of R
v Smith [2003] EWCA Crim 283, in which a black defendant who had been involved in a
fight in a night club was convicted by an all-white jury. On appeal against conviction
to the Court of Appeal, the defence lawyers argued that the decision in Ford (1989)
was incompatible with Article 6 of the ECHR. The defence asked the Court of Appeal to
declare s.1 of the Juries Act 1974 to be incompatible with the 1998 Act, but the Court of
Appeal rejected this argument. The Court held (at para.40):
We do not accept that it was unfair for the appellant to be tried by an all-white jury or that
the fair-minded and informed observer would regard it as unfair. We do not accept that,
on the facts of this case, the trial could only be fair if members of the defendant’s race
were present on the jury. It was not a case where consideration of the evidence required
knowledge of the traditions or social circumstances of a particular racial group. The
situation was an all too common one, violence late at night outside a club, and a randomly
selected jury was entirely capable of trying the issues fairly and impartially.
The case of R v Smith confirms that the right to a fair trial has not been interpreted as a
right to alter the random selection of jurors to ensure a racial mix.
On the other hand, in the case of Sander v UK [2000] ECHR 194, it was held that a fair
trial requires an impartial tribunal, and therefore the composition of the jury could
be contested if its impartiality was in doubt. In this case, Kudlip Sander, a British
national of Asian origin born in the UK, was convicted of fraud. At the trial, one of the
jurors sent a note to the trial judge expressing fears that other members of the jury,
who had made openly racist remarks and jokes, were not impartial. The judge read
out the note in open court to the jury and told them that they should ensure that
they were impartial. The next day the jury found Sander guilty and sent the judge a
collective letter, signed by all the jurors, including the original complainant, refuting
the allegations and denying any racial bias. The defendant then appealed against the
conviction – in effect, claiming that a ‘racist jury’ had tried him and arguing that the
trial judge was wrong not to have dismissed the jury. The Court of Appeal rejected this
appeal, but the case was eventually heard by the European Court of Human Rights. The
Court held that the allegations in the first note were capable of causing the applicant,
and any objective observer, legitimate doubts as to the impartiality of the jury, which
neither the letter nor the direction to the jury by the judge could have dispelled. As a
result, by a majority of four votes to three, it was held that there had been a violation
of Article 6 of the ECHR.
Research evidence suggests that juries are more racially representative of the
population than was previously thought and that, on the whole, their decision-making
is fair. In a study of jury summoning, Cheryl Thomas (2007) concluded that much
current thinking on juries is based on myth, not reality. She found that:
u there was no under-representation of black, Asian, and minority ethnic (BAME)

groups called for jury service, and that
u there was no significant difference between ethnic minorities and the white
majority in willingness to serve as jurors or in support for the jury system in general.

In a subsequent research study, Thomas (2010) analysed a large database of jury

verdicts and used experimental techniques with real juries giving verdicts on different
reconstructions of a real trial to assess whether or not all-white juries discriminated
against BAME defendants. Thomas found that the verdicts of all-white juries did not
discriminate against BAME defendants, and that all-white juries were equally likely to
convict white or BAME defendants. There was no evidence of stereotyping that would
lead jurors to see BAME defendants as being more likely to commit particular types of
offence. Thomas concluded that there was no need to empanel racially mixed juries
on grounds of fairness, but she warned that this does not deal with the appearance of
fairness to BAME defendants who are tried by an all-white jury.
This research was updated in 2017 to inform the findings of the Lammy review into the
treatment of, and outcomes for, BAME individuals in the criminal justice system (see
Chapter 13). The 2017 study analysed over 390,000 jury decisions between 2006 and
2014. As with the 2010 study, it found that jury conviction rates are very similar across
different ethnic groups. The report concludes that:
[The research] reinforces and helps to confirm one of the most important conclusions
of the 2010 study: that unlike all other stages in the criminal justice process in England
and Wales, the one stage where members of BAME groups appear not to be treated
disproportionately is when a jury, made up of members of the public, reaches a verdict by
deliberation.
(Thomas, 2017, p.860)
20.7 The decline of the jury trial?

Earlier in this chapter we discussed how the jury has been regarded as a democratic
institution which supports the rule of law. Yet there are also perceived disadvantages
of the jury system. It is sometimes said that juries can be too quick to acquit and
may sometimes base their decisions on irrational factors or be too easily swayed by
experienced advocates. They lack experience and, unlike other actors in the criminal
justice system (for example, magistrates), they will not usually have sufficient time
to develop any expertise. Jurors may lack the ability to understand the evidence,
particularly in complex fraud cases (see discussion below). It may even be that jurors
may fundamentally not understand the role they are being called on to play; in
the trial of Vicky Pryce in 2013, the jury had to be discharged after jurors asked the
judge a number of questions which showed a serious lack of understanding of the
fundamentals of the jury system (see Kirk, 2013).
There can also be concerns over jury tampering, which covers situations in which
there is a danger that the independence of the jury could be compromised as a result
of one or more jurors being intimidated or bribed, or otherwise interfered with, into
delivering a not-guilty verdict.
Although the wholesale abolition of trial by jury has not seriously been contemplated,
the use of jury trials has been severely restricted in civil cases, and its use in certain
types of criminal trials has been called into question.
20.7.1 Jury trials in civil cases

Section 69 of the Senior Courts Act 1981 limited the right to trial by jury in civil cases
to only four areas: fraud, defamation, malicious prosecution and false imprisonment.
Even in those specific cases, the right was not absolute and could be denied if ‘the
court is of opinion that the trial requires any prolonged examination of documents
or accounts or any scientific or local investigation which cannot conveniently be
made with a jury’ (s.69(1)). The use of jury trials in defamation cases was criticised
in particular, and the right to jury trial in these cases was removed by section 11
of the Defamation Act 2013. This reflected a view that defamation cases were too
complex and costly to be heard by a jury, and jury trials in these cases were becoming
increasingly rare. In Spiller v Joseph [2010] UKSC 53, Lord Phillips, in the leading Supreme
Court judgment, commented (at para.116):

Finally, and fundamentally, has not the time come to recognise that defamation is no
longer a field in which trial by jury is desirable? The issues are often complex and jury trial
simply invites expensive interlocutory battles, such as the one before this court, which
attempt to pre-empt issues from going before the jury.
20.7.2 Jury tampering in criminal cases

The Criminal Justice Act 2003 contained provision for trials to be conducted in the
Crown Court by a judge alone without a jury in special circumstances. This is in cases
where it is thought that there are serious disadvantages to the use of a jury. Section 44
of the Act provides for non-jury trial in cases where there is danger of jury tampering
or where jury tampering has taken place.
Non-jury trials were used in Northern Ireland in the 1970s during an extended period
of civil conflict when there were fears of jury intimidation (these were referred to as
‘Diplock Courts’). Aside from that experience, serious crimes have been tried by juries
in English courts for over 400 years and there is considerable concern about the use of
non-jury criminal trials.
For an application under s.44 to be granted, the court must be satisfied that there
is evidence of a real and present danger that jury tampering would take place. In
addition, the court must also be satisfied that the danger of jury tampering is so
substantial, notwithstanding any steps that could reasonably be taken to prevent it, as
to make it necessary, in the interests of justice, for the trial to be conducted without a
jury. Section 44(6) sets out examples of what might constitute evidence of a real and
present danger of jury tampering, including: a case where the trial is a retrial and the
jury in the previous trial was discharged because jury tampering had taken place; a
case where jury tampering has taken place in previous criminal proceedings involving
the defendant or any of the defendants; and a case where there has been intimidation,
or attempted intimidation, of any person who is likely to be a witness in the trial.
The non-jury trial provisions of the Criminal Justice Act 2003 were not used until
February 2010, when they were applied in a case involving Peter Blake, John Twomey,
Barry Hibberd and Glen Cameron, who were being tried for a violent £1.75 million
armed robbery at Heathrow Airport that took place in 2004. The decision to allow
the non-jury trial was taken by the Court of Appeal in 2009 after an investigation by
the police found that ‘approaches’ had been made to two members of the jury in the
third trial of the men. The Court decided that a serious attempt at jury tampering had
taken place. The Court of Appeal also held that there was a real and present danger
that jury tampering would recur if there were a further jury trial. In deciding to order a
non-jury trial, the Court of Appeal noted that the alternative of providing the jury with
round-the-clock protection would still leave their families vulnerable and that such
protection would cost £6 million as opposed to the £1.6 million for a judge-only trial.
In the case of J, S, M v R [2010] EWCA Crim 1755, the Court of Appeal held that non-jury
trials would only be permitted in ‘extreme’ cases; for example, where the protection
necessary for jurors would be unreasonably intrusive, such as 24-hour police protection.
Giving the lead judgment in the case, the Lord Chief Justice emphasised that:
The trial of a serious criminal offence without a jury … remains and must remain the
decision of last resort, only to be ordered when the court is sure (not that it entertains
doubts, suspicions or reservations) that the statutory conditions are fulfilled.
In the case of KS v R [2010] EWCA Crim 1756, the Court of Appeal rejected the need for
a non-jury trial, on the ground that the provision of limited protection for a juror was
proportionate to the threat of jury tampering. In R v McManaman [2016] EWCA Crim
3, [2016] 1 WLR 1096, the Court of Appeal dismissed the appeal against the decision in
a rape case to discharge a jury based on the judge’s finding that jury tampering had
arisen when a third party, an associate of the defendant, approached a juror though a
social media website.
In R v Twomey [2010] 1 WLR 630, the Court of Appeal confirmed the very high threshold
for the need for a non-jury trial, and outlined the task of the judge, who had to
balance:

the need for a decision in relation to the status of the trial in the interests of all concerned
together with the importance of expedition if the trial is to be continued as against the
state of the evidence in relation to tampering that has so far been obtained by the police
and the likelihood of additional inquiries producing further material evidence (para.20)
It is clear that the courts take a very restrictive approach in deciding whether to
permit a non-jury trial in the Crown Court.
20.7.3 Complex fraud trials

As noted, one of the criticisms of juries has been that it can be difficult for them to
understand complex fraud trials. A number of different reports over the years have
examined this issue. The Auld review of criminal courts in 2001 recommended that
complex fraud cases should instead be tried by a judge and two lay members from a
panel, if the judge so directed. This led to a provision in the Criminal Justice Act 2003
(section 43), which potentially provides for the prosecution to apply for a serious fraud
case to be tried without a jury. The application for a non-jury trial could be granted so
long as:
the complexity of the trial or the length of the trial (or both) is likely to make the trial so
burdensome to the members of a jury hearing the trial that the interests of justice require
that serious consideration should be given to the question of whether the trial should be
conducted without a jury(s43(5)).
This provision has never been brought into effect and so is not in force.
20.7.4 Rape trials

There have been some suggestions recently that rape trials should not be heard by
juries. In a debate in Parliament, an MP argued that the prevalence of ‘rape myths’ and
low conviction rates mean that rape trials are not suitable for trial by jury. Explaining
the problem, Ann Coffey MP stated that:
Juries view evidence through the lens of prevailing stereotypes shared with the wider
community. Rape myths still dominate in our culture, including that a woman who has
drunk a lot cannot complain if she is raped, that it is rape only if someone has injuries, that
real rapes are done by strangers in alleyways, that it is a crime of passion and that women
invite rape by what they wear. Research shows that stereotypes about how rape victims
are expected to behave remain prevalent in society and, by extension, in juries.
(HC Deb, 21 November 2018, vol 649, col 345WH, at https://hansard.parliament.

uk/commons/2018-11-21/debates/8BF93744-89C2-426C-98E3-CF8C9839C028/
RapeMythsAndJuries)
Ann Coffey cites research that attempted to recreate rape trials, with mock
juries made up of members of the public. The research found that the
mock ‘jurors’ were prejudiced in rape cases in which the ‘victim’ already
knew their attacker (see Willmott, 2016, at https://theconversation.com/
is-jury-bias-preventing-justice-for-rape-victims-60090).
As a result of these concerns, Cheryl Thomas was commissioned in 2018–19 to carry out
research with real jurors, into the extent to which they believed common rape myths
and stereotypes. Although this research has not yet been published, Sir Brian Leveson
summarised the main findings in a speech in June 2019, which were that, in fact,
very few jurors believe the obvious rape myths and stereotypes. Sir Brian accepted,
however, that better guidance for jurors would be helpful in rape trials, and such
guidance is in the process of being developed (see Sir Brian Leveson, ‘Criminal trials:
the human experience’, lecture delivered at University College London, 13 June 2019,
at www.judiciary.uk/wp-content/uploads/2019/06/Sir-Brian-Leveson-UCL-Valedictory-
lecture.pdf).
20.7.5 The jury system around the world

Many legal jurisdictions do not recognise trial by jury. For instance, South Africa
abolished its jury system in 1969, and India abolished jury trials in 1959 for nearly all

cases. Nonetheless, the jury is far from being a uniquely English phenomenon.
Some jurisdictions have a jury system that operates in a different way to that in
England. In France, a jury system can still be used in a small minority of the most
serious criminal cases, but in the form of a mixed jury system, where lay jurors sit
together with judges. In the Cour d’assises, which decides the most serious criminal
cases – involving crimes such as murder and rape – cases are decided by six jurors and
three professional judges, who together deliberate on both the facts and the law, and
decide the verdict and the sentence, with all having an equal vote in the decision. It
has been argued that ‘such a mixed panel can combine the judges’ experience with
the jurors’ fresh perspectives and sense of justice to arrive at a reasoned verdict’
(Fitzpatrick, 2010). In 2011, a pilot programme was run to extend this mixed jury system
to more minor offences (such as those tried in a lower criminal court, the Tribunal
correctionnel), with the idea of increasing citizen participation in the criminal justice
process. This was not successful and the use of the jury in France is now once again
restricted to the most serious criminal offences.
Juries are much more widely used in the USA, but there are a number of interesting
differences compared with the English jury system. In the USA, there is a constitutional
right to trial by jury. The Sixth Amendment to the US constitution states that:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,
by an impartial jury of the state and district wherein the crime shall have been committed,
which district shall have been previously ascertained by law, and to be informed of the
nature and cause of the accusation; to be confronted with the witnesses against him; to
have compulsory process for obtaining witnesses in his favor, and to have the assistance of
counsel for his defense.
Although the Sixth Amendment refers to ‘all criminal prosecutions’, case law has held
this to mean it is a constitutional right in all criminal cases where the penalty may
exceed six months’ imprisonment. This is in contrast to the English system, where
there is no comparable constitutional right to jury trial.
The US system can also be differentiated in its use of the ‘grand jury’ to decide
whether to indict a person who is being investigated for a criminal offence. There is no
comparable use of the jury in England and Wales, where, as you will remember from
Chapter 19, the decision to prosecute is taken by the Crown Prosecution Service, which
will issue the indictment. The grand jury is made up of between 12 and 23 people, who
will hear evidence and then may issue an indictment if they find that there is probable
cause to believe that a crime has been committed. No judge is present during a
hearing before a grand jury, and the proceedings are secret.
A further considerable area of difference is the use of jury selection in the USA.
Whereas in England and Wales there is no right to select the members of the jury and
the principle of random selection is applied, in the USA there is an elaborate system
known as voir dire, through which the judge and lawyers in the case ask questions of
the prospective jurors and excuse jurors not thought to be suitable. The purpose is
to try and obtain a jury panel who will decide the case is a fair and impartial manner,
although it is also used by the parties to try and obtain a jury who will be favourable
to their case. Potential jurors can be challenged either ‘for cause’, if there is a specific
likelihood of bias, or, for a limited number, ‘peremptorily’, without having to give a
reason for doing so. May (1998) discusses some of the advantages and disadvantages
of this kind of jury selection. On the one hand, it takes a long time and can
inappropriately allow parties to select a jury most likely to be favourable to their case,
but, on the other, it is a careful process that may contribute to an unbiased jury.
1. Does Article 6 of the ECHR require the use of juries for a fair trial?
2. Does Article 6 of the ECHR require juries to give reasons for their decisions?
3. What principle was established in Bushell’s Case?

4. Why is jury confidentiality thought to be important?
5. Is it an offence for a juror to tell a judge during the course of a trial about
discussions in the jury room? Is it an offence for a juror to tell someone else
about discussions in the jury room during the trial?
6. Why was the juror in Scotcher found guilty of contempt of court?
7. What guidance was given in R v Ford about the responsibility of the court for
summoning multiracial juries?
8. What does Cheryl Thomas’s research say about all-white juries and the
appearance of fairness in criminal trials?
9. In what circumstances would juror misuse of the internet interfere with due
process in criminal trials?
10. In what circumstances can a trial be held in the Crown Court without a jury?

‘Trial by jury often brings badly behaved citizens into the courtroom or gives
a narrow group of so-called “representatives of the public” a decisive voice in
delivering justice.’
Discuss this statement with reference to jury composition and recent cases on jury
misbehaviour.


This question requires you to:
u discuss issues relating to the composition of juries
u discuss recent cases on jury misbehaviour.
You could discuss the following points:
1. Describe the purpose and composition of juries. Jurors are generally only
used for criminal trials on indictment – about 3 per cent of cases. The
fundamental purpose of the use of juries is to increase lay participation
in the justice system, enhancing the impartiality of the system and public
confidence in its fairness.
2. Jury composition: jurors are randomly chosen from the electoral roll;
must be aged 18–75; and have ordinarily resided in the UK for at least five
years from their 13th birthday. People ineligible for jury service: people
suffering from a mental disorder and those who are ‘disqualified’ because
of criminal convictions. Some issues around composition include: lack of
BAME representation (although doubt cast by Cheryl Thomas in 2010 study);
possible bias when lawyers, judges or police officers are jury members (R v
Abdroikof, R v Green and R v Williamson (2007) and Hanif v UK (2012)).
3. Recent cases of jury misbehaviour – AG v Scotcher (2005): juror wrote to Ds’

mother urging an appeal and revealing jury discussions, and was convicted
of contempt of court; AG v Dallas (2012): juror was convicted of contempt
of court after using the internet to research D and uncovered a previous
conviction; AG v Davey and AG v Beard (2013): use of internet and tweeting
information while serving as a juror. These cases could be put in the context
of Cheryl Thomas’s research (2013) on jurors and the internet and possible
greater understanding now by jurors of their responsibilities (AG’s report,
2019).
4. Brief conclusion answering the question – does your analysis of jury

composition and jury misbehaviour cases justify the statement that ‘Trial
by jury often brings badly behaved citizens into the courtroom or gives a
narrow group of so-called “representatives of the public” a decisive voice in
delivering justice’?

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Legal system and method

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u Charlotte Crilly LLM, MA (Oxon), Teaching Fellow, University of London.

Published by: University of London

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Part A: Introduction to law and the legal system . . . . . . . . . . . . . . . 9

1 Introduction to law and the legal system . . . . . . . . . . . . . . . . 9

3 Historical development of the common law . . . . . . . . . . . . . . 31

4 The constitution and the legal system . . . . . . . . . . . . . . . . . . 37

Part B: Legal method . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

5 The doctrine of judicial precedent . . . . . . . . . . . . . . . . . . . . 47

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6 Judicial precedent in practice . . . . . . . . . . . . . . . . . . . . . . 59

7 The interpretation of statutes . . . . . . . . . . . . . . . . . . . . . . 73

8 Modern approaches to statutory interpretation . . . . . . . . . . . . . 83

9 Legal skills: finding and citing sources of law . . . . . . . . . . . . . . 95

10 Legal skills: reading cases and statutes . . . . . . . . . . . . . . . . . 103

Part C: Legal system . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113

11 Courts in the English legal system . . . . . . . . . . . . . . . . . . . 113

12 The constitutional role of the judiciary . . . . . . . . . . . . . . . . . 129

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13 Judicial appointment and diversity . . . . . . . . . . . . . . . . . . . 151

14 Legal professionals . . . . . . . . . . . . . . . . . . . . . . . . . . . 171

15 The civil justice system . . . . . . . . . . . . . . . . . . . . . . . . . 181

16 Access to civil justice and legal aid . . . . . . . . . . . . . . . . . . . 193

17 Alternative dispute resolution (ADR) . . . . . . . . . . . . . . . . . . 207

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18 The criminal justice system . . . . . . . . . . . . . . . . . . . . . . . 219

19 The investigation and prosecution of crime . . . . . . . . . . . . . . 235

20 The jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247

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Legal system and method

Courses on which this module is offered

CertHE, LLB, EMFSS

Notional study time

MODULE PURPOSE AND OVERVIEW

LEARNING OUTCOMES: KNOWLEDGE

5. Understand judicial approaches to statutory interpretation and the influence of

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LEARNING OUTCOMES: SKILLS

7. Apply the techniques of legal reasoning covering precedent and statutory

11. Locate legal sources;

12. Demonstrate understanding of legal terminology;

13. Understand the principles of good academic practice.

BENCHMARK FOR LEARNING OUTCOMES

(d) The doctrine of precedent and the principles of statutory interpretation.

(e) Judicial reasoning in relation to (i) cases, and (ii) statutes.

LEARNING AND TEACHING

The Laws Virtual Learning Environment

u a module page with news and updates;

u a complete version of the module guides;

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u online audio presentations;

u past examination papers and reports;

The Online Library

u the professional legal databases LexisLibrary and Westlaw;

u cases and up-to-date statutes;

u key academic law journals;

u links to important websites.

¢ Holland, J. and J. Webb Learning legal rules: a students’ guide to legal