Q 6(b). “ The developments in the doctrine of judicial precedent demonstrates a conflict between applying established principles to current decisions on the one hand and having a choice to exercise judicial discretion on the other. Critically consider this proposition”

Does this statement reflect the operation of precedent today?


Points to consider:

•    The importance of the doctrine
•    Certainty
•    Interest of  justice
•    Convenient time saving device

•    Practice Statement 1966
•    “dispensable foundation”
•    Jones v Sec of State
•    Food Corp. of India v Antilizo
•    “ the use of the PS – very sparingly
•    explain the declaratory theory
•    

•    To what extent do judges depart for the doctrine
In the House of Lords – the Practice Statement 1966 allows judges to depart when it appears right to do so
Explain the need for judges to depart for their decision in London Tramways v London County Council, as the rule did not produce the desired certainty in law and it had become too rigid.
Cases: Miliangos v George Frank & Re United Railways of Havana
    Herrington v British Railways Board (72)
R v Secretary of State for the Home Department (exparte Khawaja) & exparte Zamir
Lord Scarman stated that the HOL, before departing from a precedent of its own making, must b satisfied on two counts. First, that continued adherence to the precedent would involve the risk of injustice and would obstruct the proper development of the law. Secondly that a departure from precedent is the safe and appropriate way of remedying the injustice and developing the law.
Consider the use of precedent in the COA – Young v Bristol Aeroplane
    
•    Consider how precedent is used as a means to develop the law.    
•    Lord Macmillan in  Birch v Brown  stated that precedents should be used as a stepping stones rather than as halting places
•    The convenience of following precedent should not be allowed to generate into a mere mechanical exercise performed without  any thought
•    The theoretical position has been that judges do not make or change law; they discover and declare the law which is throughout the same This theoretical position is, as Lord Reid said, a fairy tale in which no one any longer believes. In truth, judge make and change the law, The whole of the common law is judge made and only by judicial change in the law is the common law kept relevant in a changing world.
•     R v Governor of Brockhill Prison ( exparte Evans)
•    Pepper v Hart  where the HoL declined to follow the decision of Beswick v Beswick on the use of Hansard as an aid of interpretation
•    The well known case of Rondel v Worsley, was not followed by the House of Lords in Arthur JS Hall v Simmons (2000), their Lordship felt that development in the legal process since that date meant that the immunity should be abolished as no longer being in the public interest. The law lords were unanimous in getting rid of the immunity in relation to civil proceedings, but in respect of criminal proceedings it was abolished by a bare majority of four to three.
•    R v Kansal ( 2001)  the HOL refused to depart from its decision in  Lambert ( 2001)
•    R v R (Rape: Marital Exemption) (1991), The HOL abolished altogether a husband’s 250 year old immunity from criminal liability for raping his wife, their Lordships justified the decision on the basis that the case was not concerned with the creation of new offence but with their duty to act in order to remove from the common law a fiction which had become unacceptable.
•    They saw the decision as an example of the ability of the common law to evolve in the light of changing social, economic and cultural development- Lord Keith)
•    In C v Director of Public Prosecutions (1995), the Lordships refused to abolish the presumption, preferring instead to call upon Parliament to review it. Lord Lowry discerned in the case law the following guidelines for judicial law making
•    Judges should exercise caution before imposing a remedy where the solution to a problem is doubtful
•    They should be cautious  about making changes if Parliament has rejected opportunities of dealing with a known problem or has legislated while leaving the problem untouched
•    They are more suited to dealing with purely  legal problems than disputed  matters of social policy
•    Fundamental legal doctrine should not lightly be set aside
•    Judges should not change the law unless they can achieve finality and certainty

•    Consider the – controversial issue about judges making law

•    The traditional and dominant posture of the English judiciary is that judges are broadly passive. The leading exponent of this approach is Lord Simmonds. At the opposite end to the spectrum is Lord Denning, for him certainty in law was an overrated virtue and judges not only did make law but should do so. For him  the function of the judge was to  be active in reforming the law- the law is to develop
•    Lord Radcliffe said that the law has to be interpreted before it can be applied and interpretation is a creative activity
•    Lord Reid stated “ we must have a general doctrine of precedent- otherwise we can have no certainty. But we must  find a middle path which prevents precedent from being our master”

What are the recent developments in relation to trial by jury and are the suggestions to restrict trial by jury a victory of rhetoric over common sense’? Critically consider these arguments against the symbolic significance of trial by jury.

Points to consider:

•    The importance of the jury system
•    Public confidence
•    Various committees that consider the issues of abolishing the jury system
•    Runciman Com
•    Auld Report
•    Roskill Com

•    The values that the jury  represents to the public
•    The concept of trial by own peers
•    Barometer of public feelings
•    The concept of “ lay justice”

•    To what extent are the above concept based on rhetoric arguments

Trial by own peers
Explain how the selection system ensure that the jury represents the concept of trial by own peers

•    Morris Committee – comment of ‘ property qualification’
•    Juries Act 1974 – allows for random selection
•    The concept of cross section of society

However elector register is not comprehensive –
-    lack of ethnic minority
-     it does not give equal representation
The importance for the jury to represents the public can be seen from the fact – British Crime Survey (1995) indicated that 400,000 crimes that are committed are racially motivated
It is also a concern since the case of R v Ford – whether the COA indicated that a judge should no longer have the discretion to influence the composition of jury – in order to achieve a multiracial jury

Consider the recommendation of the Runciman Com and the Auld report on this matter: that at least 3 / 4 persons on the jury box should be from the same ethnic minority as the accused or the victim

Barometer of Public Feeling

Lord Devlin regarded the jury’s right to bring in a perverse acquittal as now of the glories of our jury system. It gives protection against laws which the ordinary man regards as harsh and oppressive… an insurance that the criminal law will conform to the ordinary man’s ideas of what is fair and just, If it does not, the jury will not be a party to its enforcement

However this has given rise the many perverse decision – a totally unreasonable conclusion from the evidence presented. But the more distinguished form of jury perversity arises when jurors in a criminal trial, following their consciences and their moral beliefs acquit a defendant even where the evidence and the law clearly point to conviction.

Example:
Clive Ponting case
R v Kronlid

Perverse verdict show that juries don’t like stigmatising they don’t really regard as criminals.


The fact that they give effect to lay justice
 Though the task of the jury is merely to decide on question of fact yet there are circumstances where the jury may find difficulties in the decision making process?

For example in serious fraud cases where the Roskill Com indicated that jury have difficulty? Consider the problems that jury face in these cases and the alternative that was considered by the Roskill Com and the Auld Report

Another example is with reference to their role in assessing damages in defamation cases. You should consider the Faulks Com. Consider the cases (refer to you chapter pack on jury) and the case of John v Mirror Newspaper.