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
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What is the doctrine of precedent

  • 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
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Heirachy of Courts - SC

  • 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
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Hierarchy of Courts - CA

  • 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)
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Types of Precedent


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


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


  • 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)
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Ways to Avoid Precedent

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


  • 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


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


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

  • 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
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Literal Rule

  • 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)
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Literal Rule Cases


  • 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
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Golden Rule Narrow Approach

  • 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'
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Golden Rule Broad Approach

  • 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)
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Mischief Rule

  • 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
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Purposive Approach

  • 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
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Disadvantages of Judicial Creativity

  • 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
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Advantages of Judicial Creativity

  • 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
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