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Module Reviews: English Legal System Part One

Writer's picture: Alice SpencerAlice Spencer

Updated: Sep 20, 2020


In the coming months, we will be publishing a series of ‘module reviews’, providing a brief outline of our first-year modules at Newcastle University to help both those studying Law and those about to begin their studies to get a basic understanding of some of the key topics. In the month of September, we will be looking at the module typically labelled by most universities as ‘English Legal System’, also named ‘Legal Institutions and Methods’ at Newcastle.

Today’s post will cover what may be summarised as a ‘Judge’s Toolbelt’ – some of the tools used by judges in court when making legal decisions. This can be split into two key topics: statutory interpretation and judicial precedent.


Disclaimer: all information in these Module Reviews is taken from our own notes and research. Please do not cite this article in your own work.

 


Statutory Interpretation

If we imagine the role of a judge to be an autonomous computer programme, one might view their job as simply inputting the facts of a given case alongside the relevant Act of Parliament (or statute, as it is also known). However, in reality, the role of a judge is not this straightforward. Sometimes, statutes cannot list every single person or thing the Act applies to, and judges must decide for themselves just who and what are included. Other times, reading the Act too literally may result in an unfair or absurd outcome, and judges may wish to avoid this by taking words in their context. These are key examples of statutory interpretation, the way judges interpret statutes, and are vital in understanding the work of a judge and why certain decisions are made.




Statutory Interpretation: The Rules of Language

When it comes to deciding what is and isn’t included under an Act, there are three key rules of language that may be applied. As one might often find when it comes to studying law, the names of these rules are written in Latin.


1. Ejusdem Generis – where there is an open list (e.g. those ending with ‘and any other…’), you can use the specific terms within that list to give meaning to the general terms.

Key case: Powell v Kempton Racecourse Co – the Act contained a list detailing “no house, office, room or other place…”. The House of Lords held that the Racecourse in question did fall within the definition; just as a house, office or room could be described as a defined area, as could the Racecourse.



2. Noscitur a Sociis – where there is a closed list, words are known by the company they keep (e.g. if the list was ‘red, yellow and blue’, only primary colours would be allowed under the Act)

Key case: Pengelley v Bell Punch Co Ltd – the Act stated that “all floors, steps, passages and gangways” should be kept free of obstructions and substances likely to cause a person to slip. The Court of Appeal interpreted the places listed as placed to be walked through, and therefore corners and edges of floors, the subject of the case, were not included under the Act.



3. Expressio Unius est Exclusio Alterius – where something is expressly mentioned in an Act, this will exclude other things (e.g. a toilet sign reading ‘women’s’ would exclude men).

Key Case: R v Inhabitants of Sedgley – the Act in question sought to raise taxes on “lands, houses, tithes, … coalmines or saleable underwoods”. As coalmines were expressly included, limestone mines were excluded from the legislation.




Statutory Interpretation: Rules of Interpretation


When looking more generally at the wording of an Act, there are four key rules of interpretation (this time in English) that they can put to use.

1. The Literal Rule – this was defined by Lord Diplock as, where there is no ambiguity giving words their plain, ordinary meaning.

Key Case: Whiteley v Chappell – the defendant impersonated a dead person in order to vote in an election. Under the relevant Act, it was stated that it was an offence to “personate any Person entitled to vote”. The House of Lords held that, as a dead person is technically not “entitled to vote”, the defendant was not guilty.



2. The Golden Rule – this was defined in River Wear Commissioners v Adamson; where there would be inconsistency, absurdity or inconvenience by applying the Literal Rule, judges may look at words in their context to avoid this.

Key Case: R v Allen – the defendant was attempting to twice, which was illegal under the Act. The court had to decide whether “marry” under the Act referred to going through the marriage ceremony (in which case, the defendant would be guilty), or being legally married (in which case, the defendant would go free, as he had not legally done so). Applying the Golden Rule, the court decided on the former meaning and the defendant was found guilty.



3. The Mischief Rule – this was laid out in Heydon’s Case and can be summarised by looking at these four statements:

· What was the law before the Act?

· What was the mischief/defect for which the law did not provide?

· What remedy has Parliament intended to resolve the issue?

· The role of the judge is to ‘always make such construction as shall suppress the mischief’.

Key Case: Royal College of Nursing v DHSS – under the Act, abortions could only be carried out by a ‘registered medical practitioner’, which raised questions as to whether nurses could carry them out. As Parliament’s intention was to provide safe abortions and prevent unsafe ‘back-street’ abortions, the court found nurses to be included within the remit of ‘registered medical practitioners’.



4. The Purposive Approach – in Bulmer v Bollinger, this was laid out as looking at the purpose of the Act rather than being confined to the text of it. Whilst this may seem very similar to the Mischief Rule, a distinction can be drawn in that the Mischief Rule focusses on eliminating ‘mischievous’ acts, whereas the Purposive Approach is more holistic in the sense that it looks at the overall purpose of the Act.

Key Case: Pepper v Hart – the courts can use Hansard, the record of debates that take place in Parliament, to understand what Parliament intended when making the Act. For this to be used, the legislation must be ambiguous/obscure and the statements must be made by the relevant minister or promoter of the bill and must be clear.



 


Judicial Precedent

Another tool in the ‘toolbelt’ used by judges in making decisions is the concept of judicial precedent. Judicial precedent can be summarised by a single principle – stare decisis, to stand by what has been decided. Where the facts of the case at hand and a previous case are the same, then the outcome should be the same. For example, if a judge used one of the rules of statutory interpretation above to decide that dogs were not included under an Act about animals, then if a later case with the same material facts came to court concerning the same Act, ultimately the decision should be the same. However, there are many details relating to precedent and key terms that are vital to understanding how it is applied.



Key Terms

Ratio decidendi = the reason for deciding. This will be the reason why the judges have come to their decision, for example why they have decided a person is guilty of not guilty. This can be found in the case judgment.


Obiter dicta = other things said. These are other things said in the case judgment beyond the ratio. Obiterstatements might be simply what the judge believes the law should be, and might be used in later case judgments to form the ratio, or might define certain features of the law.

Court hierarchy = the system of courts in England and Wales, in which the decisions of higher courts bind (must be followed) by lower courts (see very basic diagram on the right).


Law reporting = reports of significant cases. As there are too many cases to report each year, with many having the same outcome, only cases that change the law, establish a new principle, etc. are typically reported. Until 1865, law reporting was done by private reporters, making it much less reliable than current-day law reports created by the Council of Law Reporting.



Avoiding Precedent

But what if judges disagree with a certain precedent? There are several actions judges can take to avoid being bound (forced to follow) by a previous precedent.

Overruling – a higher court decides that a precedent set in an earlier case by a lower court is wrong and no longer represents the law. This can only be done by courts higher in the hierarchy. Example – Supreme Court in R v Smith (2020) overrules decision of Court of Appeal in R v Jones (2015).

Reversing – a higher court reverses the decision of a lower court in the same case on appeal. Example – Supreme Court in R v Smith (2020) reverses decision of Court of Appeal in R v Smith (2019). Note the distinction between this and overruling!



Distinguishing – where the facts of the case at hand and the case with binding precedent are materially different, meaning the precedent will not apply. Example – precedent in R v Jones did not apply to R v Smith, as the former concerned cats and the latter concerned dogs.


Subsequent statute – an Act of Parliament created after the precedent was set directly conflicts with it. Example – decision in R v Jones (2015) conflicted with Dangerous Cats Act 2017, therefore Dangerous Cats Act takes precedence.


Per incuriam – the courts, in making their decision, ignored authority that would have been binding on the court (i.e. a previous binding precedent) and that ignorance led to faulty reasoning (see Morelle v Wakeling). Example – when making their decision in R v Smith (2020), the courts ignored the binding case of R v Bloggs (2018), leading to faulty reasoning and making their decision per incuriam.


Disapproving – not technically a method of avoidance, but where judges are unhappy with the precedent and find a very narrow use of it.


Methods of Avoiding: Supreme Court and Court of Appeal

Typically, the decisions made by higher courts bind the lower courts and the court that made the decision. However, as the two highest courts in the hierarchy, it is important for the Supreme Court and Court of Appeal to be able to depart from past decisions in order to enable the law to progress. Each have their own method of doing so.

Supreme Court: 1966 Practice Statement

Under the Practice Statement, the Supreme Court (previously House of Lords) may depart from its previous decisions ‘when it appears right to do so’, for example to prevent injustice and allow the law to develop. However, the Court may be more reluctant to use the Statement in some cases more than others – in R v Shivpuri, the House of Lords was quick to depart from a one-year-old precedent, whereas in Austin v Southwark LBC, the Supreme Court refused to depart from a previous precedent of almost 25 years that had been used in ‘tens of thousands of cases’.


Court of Appeal (Civil Decision): Young v Bristol Aeroplane (1944)

Although the Court of Appeal is usually bound by its own decisions, in Young v Bristol Aeroplane, the court laid down three exceptions where it may depart from previous decisions:


· Two conflicting decisions have been made

· Previous decision has been implicitly (e.g. through obiter statements or conflicting decisions) overruled by the Supreme Court/House of Lords

· Previous decision has been made per incuriam (see explanation above).


Court of Appeal (Criminal Division): The Liberty Rule

Similarly to the Civil Division, the Criminal Division of the Court of Appeal is also typically bound by its own decisions. However, in R v Merriman, the Liberty Rule was established – the Criminal Division may depart from precedent that is both erroneous and where the departure is in the favour of the accused (i.e. the person’s liberty is at stake).



 


This is just a basic outline of two key topics concerning the English Legal System, providing a starting point for your studies on this topic. Next week's post will focus on the various justice system models, looking at the concepts of adversarialism and inquisitorialism.



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