Judicial Creativity

Essay Structure:

• 1) Outline Precedent
• 2) Give Case Examples
• 3) Outline declarative theory
• 4) Outline Statutory Interpretation
• 5) Give Case Examples
• 6) Discuss whether judges should have this power

• Judges abide by past rulings and adapt them to the current case
• Decisions have greater authority in the appeal courts
• Known as the stare decisis (standing by decisions)

Stare Decisis is made up of the ratio decidendi and the obiter dictum

Ratio Decidendi

• 'the reason for the decision' - legal reasoning for the ruling
• Draws on previous lgal rulings + careful analysis of legal principles
• Legally binding on lower courts

Obiter Dictum

• 'Things said by the way' - will contain account of how things might have been if the facts were slightly different
• Not legally binding but persuasive

• Each court's decisions are binding on the courts beneath it
• Practice Statement 1966 - Supreme Court (then HL) can depart from its ownh decisions 'when it appears right to do so'
  • Used sparingly

Use of Practice Statement 1966 by HL/SC

• Criminal - Gemmel and Richards (2003) overruled Caldwell (1981) on test for recklessness
• Contract - Miliangos (1976) overruled Haven Railways (1960) on damages only being awarded in sterling

• Bound by Supreme Court + it's own decisions
• Young v Bristol Aeroplanes (1944) gave it the 'Young Exemptions'

Young Exemptions

• 1) Conflicting decisions in past CA cases - court must choose which decision to follow
• 2) A SC/HL decision effectively overrules a CA decision - CA must follow SC/HL
• 3) The decision was made per incuriam - carelessly or by mistake because a relevant statute/regulation has not been considered
  • '3)' used in Rakhit v Carty (1990)

Original

• when court adresses issue for the first time
• E.g. Re A Children, Hunter v Canary Wolf

Binding

• Must be followed by courts in later date
• Usually set in appeal courts

Persuasive

• not binding
• reasons for persuasive precedent
  • part of obiter
  • Set in a lower court
  • Set by Privy Council - E.g. A-G for Jersey v Holley (2008)

• Initially, precedent appears restrictive but there are some things that the judiciary can do to give them flexibility:

Distinguishing

• Used by a judge to avoid following a past decision otherwise in need of following
• Judge finds facts of case sufficiently different for him to draw distinction between the two cases
  • Not bound by previous case's precedent
• E.g. Brown/Wilson

Reversing

• Appeal Court decides law was wrongly applied when the case was heard in lower court. Happened twice in Kingston

Overruling

• Law was wrongly applied in an earlier case + otherwise binding precedent doesn't need following - Caldwell -> Gemmell and Richards

• Argues that the judiciary don't create the law, they merely state what has always been, but has never previously been expressed
• Used to deny creation of the law by the judiciary
  • Problem w/judiciary making law = unelected -> no right to create law
• Following cases have retrospective effect. Declarative theorists argue they are applying existing legal principles -> applying law as has always been
  • R v R (1991)- marital R4PE
  • Smith and Hughes - prostitutes
  • Donoghue v Stevenson - snail in the ale
• Declarative theory argument fails w/original precedent - Re A Children, Hunter v Canary Wharf - hard to see how judges not making laws

• Avoids judicial creativity
• Judges give wording its plain ordinary meaning exactly as written in statute
• Respects Parliament's wishes literally to the letter
• Enusres consistency in law + anyone who can read english knows the law
• Can produce harsh/absurd results (Berriman)

Berriman

• Railway worker was oiling signalling apparatus + killed by train
• Wording in Act - workers who were 'relaying or repairing the track' required a lookout to be posted
• Held: did not apply to Berriman, as he was oiling the track

Whitely and Chapell (1868)

• D voted in name of dead person

Cheeseman v DPP

• 'Street' and 'Passenger' ... dare I say more

Fisher v Bell

• Flick knife - offer for sale / invite to treat

• Overcome unjust/absurd outcomes
• Definition - Lord Ried in Jones v DPP (1962) - 'if [the words] are capable of more than one meaning, then you can choose between those meanings, but you cannot go beyond this'
• Can only be used when wording is ambiguous + using one literal meaning -> absurdity
  • Judge will use literal meaning that doesn't lead to absurdity
• Slight extension of literal rule - flexible but not too far in judicial law making

Adler v George

• D was charged w/ 'obstructing a member of the armed forces in the vicinity of a prohibited place'
• D argued that in the vicinity is being near the place but D was actually in it 
• Held: Court ruled that it could be either of these things but applied the meaning that it meant 'inside'

• A word has only one meaning but its application = unnaceptable
• Courts will modify words in statute to rectify the problem

Re Sigsworth

• Held: 'issue' does not include children who kill their mothers
• No ambiguity but court not prepared to allow someone who killed his mum to inherit her estate
  • Would be letting a murderer benefit from his crimes
• Used to prevent absurdity
• Blatent example of judicial law making (creativity)

• Heydon's Case (1584)
  • look at common law pre-statute
  • Identify 'mischief' (defect) in previous law
  • Identify the way in which Parliament proposed to remedy defect
  • Put it into effect

Smith and Hughes

• prostitutes not to solicit in the 'street or public place'
• Aim of Act = allow citizens to walk the stree free from solicitation
  • Same problem, although not technically on the street

• As mischief rule = putting Parliament's wishes into effect, may argue for declarative theory
  • But judges do not all reach same conclusion on what Parliament's wishes were
    • Has been made easier w/intrinsic + extrinsic aids

• Lord Denning in Magor RDC v Newport Corporation (1951) - 'we do not sit here to pull the language of Parliament to pieces and make a nonsense of it ... we sit here to find out the intention of Parliament and carry it out' - massive fan of purposive approach

R v Registrar-General, ex parte Smith (1990)

• D - a convicted murderer - wanted to get a copy of his birth certificate to track down his biological mother
• Experts thought D may pose a danger towards his biological mother
• CA: despite unambiguous wording, this could not have been Parliament's intention
  • In this case, ruled that registrar did not have to give birth certificate

• Inconsistency within judicial process
  • Judge's belief in decoding Parliament's belief - subjective
• Unelected body can set precedent + common law
  • Counter w/declarative theory
• Retrospective effect
  • Breach of Art 7 ECHR - 'no one shall be held guilty of any criminal offence on account of any act ... which did not constitute a criminal offence ... when it was committed'
  • Counter w/declarative theory

• Fixes loop holes, gaps, ambiguous wording
  • Variety of approaches -> judge can choose most appropriate
• Seperate from Parliament -> seperate from Parliament's issues
  • Party politics/time restraints
    • Can fix loopholes quickly compared to Parliament
    • Can provide clarity in law quickly - why A-G goes to them for their refs
• Can address issues w/developing technology
  • Royal College of Nursing - court had to make decision relating to tech advancements allowing drug-induced abortions