Category Archives: Legal

Courtroom Ramblings 

Wednesday 1st April @ 9:16am 

Every aspiring lawyer knows they should get some invaluable court experience under their wig. Whether that be just visiting to sit in and listen to a trial, to take part by completing some advocacy or marshalling or even on a victim support scheme. At some point during your academic training you will have visited a court. 

After 7 years of being in the industry and working on litigated cases you would think I would already have this experience but no, I don’t. The only time I had ever visited a court was to attend the enquiry counter or to submit a bundle or other documents which needed to be severed.  Oh and to attend an interview with a High Court Judge many years ago to become his secretary – I turned the job down as I hadn’t realised I would actually be sat on the bench and that petrified me! I had never set foot in a courtroom, especially not a criminal one given it isn’t my specialist area or the area I wish to go into.

Nonetheless, I am aware of how important it is to gain that experience and even make contacts. I signed up to the MJLD remand scheme in conjunction with Liverpool Magistrates Court and I am currently sat in the waiting area sipping on a hot cup of tea to calm my nerves before going in. However, this isn’t my first time, I attended Birkenhead Mags on Friday to support someone I knew while they had their plea hearing. I arranged their solicitor, provided support and advice throughout the whole process. 
It was very interesting for me to see it from the other side and see a former colleague giving advice and then “perform” in front of the magistrates to negotiate the clients sentencing (they pled guilty as they didn’t wish to take the action any further due to the torment and distress the issue was causing despite being innocent). I was in awe, and it opened my eyes up to the criminal legal system and advocacy. Perhaps it may be of interest to me after all? I will see if I feel the same after this mornings viewings. 
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The Unwritten UK Constitution

Constitutional law concerns the role and powers of institutions within the state and the relationship between its individual members. At any point in time, it will reflect the moral and political values of the people it governs. A constitution will generally divide powers among different institutions of government; a legislative branch to make the law, an executive branch to implement the law and a judicial branch responsible for interpreting and upholding the law. Arend Lijhat theorised that there are three dimensions to a constitution: (1) written and unwritten, (2) flexible vs rigid and (3) Judicial Review vs no Judicial Review. The United Kingdom (“UK”), whilst many would argue it does not have a constitution, they are wrong, it undoubtedly does – it is just unwritten. Lijhart’s theory goes a long way to explaining the basic principles of a constitution which will be discussed in greater detail in a bid to draw comparisons whilst discussing whether the evolutionary and flexible nature of the unwritten UK Constitution is its greatest strength.

The first dimension proposed by Lijhart is the idea of whether a constitution is written or unwritten, also described as a codified or an uncodified constitution. A codified institution is when all major principles underpinning the political system are contained within one single document, for example, the United States of America’s Constitution (“US”). This type of constitution is usually created at a pivotal time in that nation’s history; Independence in the US’ case or a revolution in the case of France. Generally this type of constitution will have a two tier legal system; the constitution has a higher status that all other law and concerns who has power, institutional relationships and rights of its citizens. These are safe guarded and entrenched. Below the higher laws are ordinary laws which concern the relationships between citizens, administration of the state and criminality etc, these are easily changed without special procedure and are not safeguarded. The UK constitution would be described as an uncodified one as there is no single place to find the principles given that they come from different sources; Statutory Law, Common Law and Reform. Arguably, the term ‘unwritten’ is misleading given that all laws are recorded and published, just across different books and not in one single place. One of the key differences is that an uncodified constitution is flexible in its very nature given that it is constantly evolving and changing with society. There are no specific provisions needed in order to amend it which allows it to evolve over time, however this does also make it susceptible to abuse.

The development of the UK Constitution began with the ‘Magna Carta’ in 1215. The Magna Carta, a document land barons forced the King to sign in order to protect landowners’ rights from unfair treatment by the monarch, was the first official document to limit the monarch’s powers. Although It gave little rights to the common people, some elements of the document remain on the statute books today. It is often cited as being the foundation of the British Constitution and other countries have adopted codified constitutions tracing back to the Magna Carta.

The UK Constitution is sourced from a variety of places; Statutory Law such as; Parliament Act [1911] , European Communities Act [1972] and Scotland Act [1998] ; Common Law or ‘judge made law’ derived from judicial decisions and Royal Prerogatives, powers previously used by the monarch before they were passed on to the Prime Minister. These can be used to appoint and dismiss ministers, dissolve parliament and declare war. Other common law examples are; Freedom of Speech and the Doctrine of Parliamentary Sovereignty. Another example of a source are Works of Authority such as recognised guidance on the constitution, A.V. Dicey, An Introduction to the Study of Law and the Constitution [1885] and Hansard, Erskine May. Conventions and EU Law also go to the very route of the UK Constitution. Any major constitutional changes will be put to a referendum before parliament acts upon them; The Salisbury Convention resulted in the House of Lords Reform. EU Law has modified Parliamentary Sovereignty and it is questionable as to whether it is still fully intact. EU Law prevails over domestic law; Factotame the European Court of Justice (“ECJ”) rules that national courts could disapply UK law if it conflicted with EU law.

The main principles of the UK Constitution are; Parliamentary Sovereignty, The Rule of Law, Unitary State and Parliamentary Government. Parliamentary Sovereignty is the cornerstone of the constitution and it is the principle that Parliament is the ultimate source and power within the political system. Parliament is able to legislate on any matter of their choosing which cannot be overturned by a higher authority but they cannot bind their successors. F.F. Ridley’s statement simplifies the role of Parliament adequately;

“If we [in Britain] have a constitution at all, it is a one sentence constitution stating that parliament can make or repeal any law whatsoever”.

While Ridley’s statement supports the idea of a flexibility within the law as per Dicey’s earlier statement, it also gives rise to the question as to whether the UK is actually an elected dictatorship. However, successive parties are not bound by the previous government’s decisions and can repeal any law at any time should it appear to be unfair. An advantage of this is that emergency laws can be passed quickly when required, The Terrorism Act [2007] was a rushed piece of legislation in response to an emergency situation involving public safety.

A negative in respect of Parliamentary Sovereignty is that Judicial Review is limited, as opposed to the US Constitution where it is an important feature. With little or no judicial review, there is no way to determine what is unconstitutional.

The Rule of Law governs the relationship between the state and its citizens, it ensures that state action is limited and responsible. All citizens must obey the law and are treated equally under it, they have the right to a fair trial and to take action against a local authority or the government if they feel they have been improperly treated whilst also providing protection from government action. It allows for courts to hold government ministers, police officers and public officials accountable for their actions if they have acted outside the law or been negligent in their duty. Most importantly, it allows for Statutory Law to be interpreted and applied by independent judicial members who are free from political interference. It provides for some separation of the legislature from the judiciary, making the constitution more flexible as the judiciary are the ones to interpret the law made by parliament when presiding over a case allowing a degree of flexibility in the decision making process and the law itself. In theory, Parliamentary Sovereignty enables Parliament to abolish any rights of the citizen by changing or amending the law, they have done this already by restricting the right to a fair trial to a ‘right to a trial by jury’ by way of the Criminal Justice Act [2003] , they also extended the time limit the police can detain a terror suspect to 90 days without charge from the mere 24 hours or 36 hours for an indictable offence, it was and still is for non-terror suspects.

The third principle is that the UK is a Unitary State. Constitutions can be classified in accordance to how their political power is divided. With a federal constitution, the powers are separated by federal government, the power is then diffused rather than concentrated into one body or organisation like a unitary constitution. In this sense, the US constitution is more flexible as each individual state is able to make its own laws with the Constitution being the overriding force, which can result in disputes but the constitution will prevail. An example of this could be the fact that some states cater for Same Sex Marriage whereas others do not, the power diffused to each state has allowed them to make the decision themselves. The UK, having a unitary constitution means the power is all located within one body, in the UK’s instance, with the legislative body; Parliament. UK Sub national institutions do not have autonomous powers that are safe guarded and local authorities have little or no power. All the power can be located at Westminster where Parliament is located.

This in itself can be problematic due to Parliamentary Sovereignty as the ultimate power lies with Parliament, and by introducing a new Act, the basic principles of the UK Constitution could alter quite easily due to it not being entrenched or safeguarded. The US Constitution is more rigid in this regard.

The final principle is Parliamentary Government, UK Parliament is an elected body, following an election; the majority party with the most seats in the House of Commons becomes the newly appointed government. When in power, they have the power to control the legislation including repealing any acts made by the previous government or introducing new ones. However as Legal Sovereignty lies with Parliament, their approval must be given for any new law to be passed as certain procedures must be followed. A. V. Dicey said;

‘[a flexible constitution] is one which every law of every description can be changed with the same ease and in the same manner by one and the same body’.

The fact Parliament alone controls the legislation is arguably flexible in accordance with Dicey’s statement as Parliament are the body which make and change law in the same way.

Being an unwritten constitution, the UK constitution is highly adaptable, flexible and evolutionary. This is proven in the fact it has worked effectively for many years and it can adapt to a changing world without major upheaval. When society or values change, the constitution is able to change with it without delay or confusion. This is preferable to a written constitution, unlike the US, where a simple change could prove difficult. Conservatives view the constitution as an organic body of rules rather than an artificial creation, it has evolved over time to reflect the true values of British people while also providing for a strong and effective Government at all times.

Whilst it is advantageous, it also has its weaknesses. The uncodification of the constitution creates problems with a lack of clarity and interpretation, as it is not always clear when the government has acted unconstitutionally. The lack of separation of powers proves for bias to occur as there is a crossover of members of the judiciary being members of the House of Lords and residing when a new law is being passed, their opinion may be overshadowed by their political views. Due to the power being centralised in the centre with the most part being delegated to Parliament, there is a risk that a lack of restraint has the potential to be dangerous insofar as individual and minority rights could be repealed on a whim by Parliament. Whereas, If it was codified the key principles would be written down and wouldn’t be so easily changed, such like the US constitution and it’s ‘Bill of Rights’.

A move into a codified constitution has been discussed and favoured by many, in particular by Charter 88 (unlock democracy), Labour and the Liberal Democrat Party. Their reasoning could be argued to be quite selfish in that they had growing dislike over the UK election methods stating they were unfair, no party since the war has had the majority vote, an increase in demands from Scotland, Wales and Northern Ireland for less control from London. Earlier this year the Scottish Referendum took place in which Scotland’s inhabitants took a vote for independence, the result was a resounding no! Other reasoning included their dislike of the role and influence of the House of Lords and the Monarchy, and changes brought about due to being a part of the European Union (“EU”).

There are currently talks of an EU Referendum taking place with a view to the UK removing itself from the EU, the UK’s membership has many negative and positive factors some of which have a bearing on the constitution. EU law overrides UK Law if there is a conflict, which means not only is EU law enforced within the European Courts but also by UK Judges at national levels. There is apperception that this has made the UK Courts more powerful as they can refuse to uphold the domestic law in favour of the EU law. The legal status of the citizens has changed, not only are they able to air their legal grievances at a domestic level but also at a European Level. This is a significant factor as any judgement given at European level will also have an effect on the rest of Europe. Whilst this is a positive that citizens also have further recourse should they not be happy with the Supreme Court’s decision, it also may impact negatively on other members of the EU given that the UK is quite different from other member states in respect of its values and traditions. A favourable decision in respect of an English case may not be favourable to a case in France and vice versa. The overarching theme for changes appears to be Parliamentary Sovereignty, whilst in theory this feature remains unchanged as Parliament could pass law to remove the UK from EU and Community Law and the law would cease to apply at a national level. In practice the social and economic implications that withdrawal renders are inconceivable. As such, it is possible to argue for the foreseeable future and all practical purposes, the British parliament is no longer sovereign.

In conclusion, the flexibility and evolutionary nature of the UK constitution is one of its main strengths. Whilst a lack of clarity and other issues may make it appear more favourable to move to a codified constitution. The very fact the UK constitution is unwritten is what makes it as flexible as it is able to change so often and fluidly with little upheaval. It has worked for many years and some aspects have even been adopted by other countries.


The Law on Recklessness

For a person to be convicted of a criminal act it must be proven beyond all reasonable doubt that two elements were present; the Actus Reus and the Mens Rea with some exceptions, such as, strict liability offences. The Actus Reus being the guilty act and the Mens Rea the guilty mind. Each element is built upon its own principles which need to be satisfied on their own merit before the overall element will be satisfied. Focusing on the Mens Rea elements; intention; a subjective concept as to what the defendant intended at the time of committing the offence as opposed to what the reasonable person thought to have intended , and recklessness; taking of unreasonable risks . Recklessness, in particular has been openly subjected to criticism, in particular the subjective and objective tests have evolved recklessness over time through the application and development of the principle via the English Legal system.

The term reckless dates back to the 19th Century when the case of Pemblition originally coined it in order to interpret the term malicious. The Defendant was charged with ‘unlawfully and maliciously committing any damage, injury, or spoil to or upon any real or personal property whatsoever’ . He was convicted despite the jury finding he had not intended to break the window in question. On appeal, the conviction was quashed with Lord Colderidge CJ finding; “‘if the jury had come to a conclusion that the prisoner was reckless of the consequences of his act’ then they could have found the defendant guilty. The interpretation of the court was that ‘maliciously’ required proof of intent, but also accepted intent could be shown by proof of a recklessness disregard for a foreseeable risk. This decision was followed in Welch and further in Harris where its meaning was developed further to become subjective;…

“If you think that the prisoner set fire to the frame of the picture with a knowledge that in all probability the house itself would thereby be set on fire, and that he was reckless and utterly indifferent as to whether the house caught on fire or not, that is abundant evidence from which you may draw the inference that he intended the probably consequences of his act”,

…as it stayed at the turn of the century until one of the most important cases in the history of recklessness.

The case of Cunningham was a defining moment for the term recklessness. The defendant while stealing money from a gas meter, tore it off the wall leaving pipes exposed. Gas seeped into the basement of the adjacent house affecting the resident. He was charged and convicted of “unlawfully and maliciously administering a noxious thing so as to endanger life” . However, the conviction was quashed as Judge Oliver J had misdirected the jury on the meaning of maliciously; “maliciously” meant “wickedly” doing something which he has no business to do and perfectly well knows it. ‘Wicked’ is as good a definition as any other which you would get”. On appeal, Judge Byrne J said;

“In any statutory definition of a crime, malice must be taken not in the old vague sense of wickedness in general but as requiring either (1) An actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (i.e., the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it)”

This meant that when the term ‘malicious’ is used within a statute it was necessary to establish whether the defendant intended the harm or whether he was reckless as to the harm occurring. Cunningham went on to lay down a subjective test for recklessness, it was not enough for someone to foresee a risk of harm; they must have foreseen the risk and committed the act, regardless.

The Law Commission considered the test and subsequently approved the above passage with recommendations that the term malicious be avoided and the term reckless used as an alternative. Although it appears to be a minor change it was actually quite a significant one; the term ‘reckless’ was recommended to become a principle of Mens Rea of its own right, whereby previously it was used as an aid to interpret the term ‘malicious’. Arguably Cunningham is one of the most important cases for establishing the law of recklessness. With regards to the later decision in Caldwell , the Law Commission did not believe the subjective test was leading to unjustified acquittals. The proposals were largely accepted, so much so that the Malicious Damages Act was replaced by the Criminal Damage Act with the words ‘maliciously’ being replaced by ‘intentionally’ and ‘recklessly’. As no definition of reckless was provided within the act, it was assumed, whether rightly or wrongly, that the law remained the same and the rules of Cunningham applied.

As was the case in Stephenson , the Defendant, a schizophrenic, attempting to sleep in a hollow at the side of a haystack, in a bid to keep warm, lit a fire which unfortunately took hold causing £3,500 worth of damage. He was charged and convicted of Criminal Damage . On appeal, the conviction was quashed given the trial judge had said the defendant could be found guilty even if ‘[he had] closed his mind to the obvious risk from his act’, creating more of an objective test than subjective. Lord Lane said; “We wish to make it clear that the test remains subjective, that the knowledge or appreciation of risk of some damage must have entered the defendant’s mind even though he may have suppressed it”, emphasising that the test was a subjective one.

A new definition of recklessness emerged from the ruling of Caldwell , somewhat oddly giving the ruling only three years prior in Stephenson , with it being of an objective nature. The defendant employed by a hotel was dismissed giving rise to a grievance. He got drunk and set fire to the hotel. Luckily the fire was dampened in time with no real harm occurred to the residents. The Defendant argued that due to his intoxication the comprehension that there were people in the hotel at the time did not cross his mind. He plead guilty to an offence under s1(1) , but denied the offence under s1(2) of the Criminal Damage Act. He was convicted nonetheless, his appeal eventually reached the House of Lords where Lord Diplock sought to change the law on recklessness. He did so by stating the form of recklessness derived from Cunningham was only intended to help interpret the word malicious within the old statutes and therefore it need not apply to the more modern statutes were the term reckless was used despite already having been applied in recent cases in relation to the 1971 Act, for example Stephenson . He argued; “the only person who knows what the accused’s mental processes were at the time of committing the crime is the accused himself and probably not even he can recall them accurately when the rage or excitement under which he acted has passed.” and sought to broaden the test for recklessness, thus the objective test was born; “(1) He does an act which in fact creates an obvious risk that property will be destroyed or damaged, and (2) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved and he nonetheless gone on to take it.” From then on, recklessness in relation to the criminal damage act would be interpreted objectively, through the eyes of a ‘reasonable man’ as opposed to those of the defendant.

Lord Diplock’s new test was specific to criminal damage, however he intended for it to be used more widely across other areas of law as he believed subjective recklessness had served its intended purpose and was ‘not helpful’ and therefore only objective recklessness should be used. However this attracted a lot of criticism, Lord Browne – Wilkinson, for example, commented that the new test was ‘not very helpful’, but they need not have worried. For instance, Lawrence , decided the same day as Caldwell applied the test for the offence of reckless driving and decided it would be used moving forward, however this became obsolete when the offence was changed to dangerous driving in the new Act . Similarly, it was designated to be used in attempted rape cases following the decision in Pigg however, provisions set out in the Sexual Offences (Amendment) Act and the decision in Morgan together with confirmation from Satnam made it clear a more subjective approach was to be used. The objective test continued to only be in use for the offence of criminal damage once the other offences in which it had been adopted, diminished. It became open to much more criticism especially given the injustices it was causing such as in Elliot which involved a minor with low intelligence. It was unfair, to say the least, to have her compared to the ‘reasonable man’ who did not have the same characteristics as her. Unfortunately the conviction was upheld due to the precedent of Caldwell . Interestingly, Goff J stated; “I would be lacking in candour if I were to conceal my unhappiness about the conclusion which I feel compelled to reach.” The law stayed this way until the groundbreaking case of R v G

The facts of the case were; two minors entered the back yard of a shop in the early hours, lit some newspapers and left them under a wheelie bin then left the yard. The fire spread, causing approximately £1m worth of damage. They were charged with Arson. On appeal, Lord Bingham stated the main question to be decided was; ‘What did Parliament mean when it used the term ‘reckless?’. In answering, Lord Bingham decided, having referred to The Law Commission Report, ‘the term ‘reckless’ was to replace ‘malicious’ and to be given the same meaning provided by Cunningham ’. He went on to say he felt the House of Lords had fallen into an ‘understandable but demonstrable error’ by following Caldwell , but this did not give cause for appeal as the objective test had been approved on many occasions. However, on this occasion he felt it right to overrule such a precedent and set out his four reasons for doing so; ‘(1) it is a ‘salutary principle’ of the law that it had to be proven, especially in cases of serious crime, that the defendant had the necessary mens rea to commit the crime. (2) the objective test set down by Caldwell led to unfairness, especially in cases involving a child. (3) he could not ignore the criticism made by the judiciary and academics. (4) the decision in Caldwell was a misinterpretation of the Criminal Damage Act as the judges failed to refer to the Law Commission Report when making their decision.’

In conclusion, the law on recklessness has undergone much development since it first arose in the 19th Century. It became its own area of law as a result of Cunningham with the test to establish if a defendant was reckless to be a subjective one. It was then developed in statutory law replacing the term ‘malicious’. The law on recklessness took a turn for the worst when it became an objective test following the decision in Caldwell much to the judiciary and academia’s distaste. It was widely criticised, repealed by new offences and even led to grave injustices until the House of Lords bravely overruled Caldwell . They rightly made the decision that recklessness should be subjectively tested as was originally decided by Cunningham . It is arguable that the decision from R v G was not a development but simply a correction to the law and returning it to where it should never have strayed.


Judicial Precedent; How can we depart from it?

Judicial Precedent is a legal rule established by the ratio decidendi of a Judgement. This forms a precedent to be identified in future cases, of which there are two types; persuasive and binding. Persuasive precedent is where a court may choose to apply it but is not necessarily obliged too. An example of this may be a decision made in court of lesser or equal standing, or courts outside the jurisdiction and statements made as obiter dicta within a Judgement. Binding precedent, or stare decisis , has been described as; ‘one of the oldest and most fundamental features of the English Legal System’ with Walker and Ward considering it the ‘cornerstone’ of the English Legal System . The concept of ‘justice’ dictates that two characteristically similar cases need to be treated the same for fear of the perception that one has received preferential treatment. Gifford and Salter point out that, ‘it may be better to have certainty in law than to engage in the pursuit of perfecting it’ even if a decision is questionable and criticised both academically and professionally. Lord Halisham in Broome tends to agree, asserting that ‘some degree of certainty is at least as valuable a part of justice as perfection’ .

Before the Norman Conquest different areas of the country where governed by different laws, usually adapting when different settlers invaded the area. William the Conqueror gained the throne in 1066 and established a strong central government in a hope to standardise the law. Representatives of the King checked local administration and laws which were fed back to Westminster, they underwent discussion to sift out the unreasonable ones and thus a consistent body of rules was formed . The principle stare decisis (let the decision stand), was born and grew to provide a more predictable law by following previous decisions. By about 1250 a common law, or modernly known as case law, was produced and used consistently across the land even to this day. A hierarchy of precedent grew with the common law, much in line with the modern court hierarchy system used today .

As we are members of the European Union, the European Court of Justice binds all courts in the English Legal system as well as the domestic courts within its other member states . The Supreme Court, formerly House of Lords, binds all the domestic courts below it such as, Court of Appeal, County Courts, Crown and Magistrates . When faced with a case where an earlier decision appears to relevant, the Judge can do any of the following; (1) follow the earlier precedent if the facts are similar; (2) distinguish the facts of the present case from the earlier precedent; (3) overrule the earlier decision if the decision was made within a lower court and they disagree with the Judgement. This is used sparingly as it weakens the authority of the lower courts; and (4) reverse a decision of a lower court if the case is appealed to a higher court and they feel the lower court wrongly interpreted the law.

Gavel and Books Until 1966 when Lord Gardiner introduced the Practice Statement , reading that he and other Lords of Appeal would ‘in future consider itself free to depart from its own previous decisions’, the House of Lords was bound by its own previous decisions as established in London Tramways except where a decision had been made per incuriam (through lack of care). Although this ‘freedom’ is used sparingly . In Jones the House of Lords chose not to depart from their previous decision in Dowling despite four of the seven Lords hearing the case thought the decision in Dowling was wrong. Three of the four thought the decision should be departed but the others disagreed. Lord Diplock, in favour of departing, stated ‘although Dowling was a recent decision he saw no greater reason for perpetuating recent error than for leaving ancient error uncorrected’ . All four Judges who chose not to depart from Dowling were in agreement; they could not depart until a broader issue was at stake. This is supported by Zander, who quotes Professor J. W. Harris’ assertion that precedent should be followed, “unless…the issue at stake is so fundamental that it is the appellate Judge’s duty to enforce his own view” . Lord Reid quite rightly pointed out; if a majority of six to five in the first appeal could be overruled by the majority preferring a different decision in the second, there was no reason why a third appeal could not restore the original decision; thus, “finality of decision would be utterly lost” . However, Professor B.V. Harris’ countered these views with the opinion that doing justice in the case at hand should outweigh the values embodied within stare decisis . While both arguments have merits, it would seem that should Professor Harris’ opinion be adopted, a policy to this effect would mean Judges would always be given the opportunity to distinguish the present case from the relevant precedent given that no two cases are exactly the same. While this would be a benefit to the party of the case, the uncertainty it would cause for everyone else could not be considered an acceptable consequence as it would be non-existent.

Despite the alluded reluctance to depart, there have been occasions where the House of Lords decided it should depart a previous decision. It was found in the years between 1966 and 1980 the House of Lords had the opportunity to overrule their own decision in twenty-nine cases but only doing so on eight occasions . Shivpuri overruled a decision made only a year prior in Anderton as it deemed the interpretation of the Criminal Attempts Act 1981 in that case had ‘virtually emasculated the Act’ . Interestingly, Lord Bridge States; “if a serious error embodied in a decision of this house has distorted the law, the sooner it is corrected the better” . This view contrasts with that in Kansal when the House of Lords refused to depart from its verdict in Lambert on the grounds it would not depart from such a recent decision, despite agreeing the reasoning in Lambert was incorrect .

While the House of Lords is the Supreme Judicial Authority in the English Legal System, Twining and Miers argue that the Court of Appeal is more significant on the grounds it hears more cases than the House of Lords and generally, for many reasons, including financial, the Court of Appeal is the ‘last resort from most appellate cases’ . In 1997, the House of Lords heard 83 cases while the Court of Appeal heard 1,225. Young established the Court of Appeal was bound by its previous decisions except in three circumstances: (1) where there are two conflicting decisions it may choose which to follow; (2) when a ruling of the Court of Appeal, though not overruled, does not stand with a later ruling of the House of Lords; (3) where it is satisfied that an earlier decision was given per incuriam .

There are other exceptions to the rule apart from the three given above, Manchester et al identify the case of Rickards where the Court of Appeal held if a case was wrongly decided and the Court of Appeal was the final appellate court (no review by House of Lords possible) they could depart from a previous decision even if it did not fall within the category of a decision reached per incuriam . They also highlight Brent where the Court of Appeal held a proposition of law which was a part of the ratio decidendi of a previous decision which was assumed to be correct but had not been argued or considered before the court they were to depart from the decision.

There has been occasion when the Court of Appeal identified a binding precedent from the House of Lords but chose to depart from it. Lord Denning, in giving Judgement in Schorsch Meir GmbH ruled that the Judgement in an English court could be given in a currency other than sterling overruling the House of Lord’s decision in Havana Railway on the grounds that cessante ratione cessat ispa les (when the reason for the rule lapses). Although this case didn’t go to the House of Lords on those grounds the same issue arose in Miliangos . Lord Cross took the opportunity to assert the House of Lord’s authority issuing a sharp rebuke to Lord Denning, stating, ‘it is not for any inferior court – be it a country court or a division of the Court of Appeal presided over by Lord Denning – to review decisions of the house’ .

A common theme is that the common law provides certainty and a detailed set of rules in response to real situations as opposed to statues which are hypotheses. If Judicial Precedent is followed people are able to live within a set of rules and guidelines and know when they are doing wrong. Hayek has argued that case law should be the main source of law as it developing in line with market forces; if the ratio in a case doesn’t work it can be abandoned, if it does work it will be followed . The law can constantly develop adding to its flexible nature meaning it’s able to meet the demands of an evolving society at a much quicker pace than Parliament is able to legislate appropriately , the most radical of which would be the Practice Statement of 1966 .

The complexity and volume of cases can prove difficult as there are so many cases to choose from with more being added daily. With technological advances almost every case is readily available online and at a faster rate than they were previously . Judgements are long and sometimes the ratio can get lost within irrelevant material making it difficult to pinpoint the relevant principles. A solution to this may be to follow a more concise European system where courts give a single Judgement with no dissenting Judgements . However this can prove problematic as the decisions can be so specific that lawyers are required to carry out considerable research around specific words to unearth the legal impact as no explanation is provided. The rules of Judicial Precedent are detrimental to themselves insofar as Judges need to follow a binding precedent despite think it is bad law or inappropriate. They could be following this law for quite some time before a court high enough has the power to overrule . This could also lead to illogical distinctions. A Judge may distinguish between scrupulous facts in order to distinguish a case resulting in lots of precedents for similar facts which only further complicates the law. This complication could lead to unpredictability as it may be impossible to establish which precedent should be applied to a given case. The law can only develop based on the facts of a case brought before it, important changes may not happen unless someone has the money or determination to push forward a case .

In conclusion, Judicial Precedent is a fundamental factor of the English Legal System. It allows the law to constantly evolve and develop with the changing times, meeting the needs of its citizens whilst providing a framework of rules and regulations to live within. While Judicial Precedent has come under some scrutiny it appears the general consensus is one that the benefits far outweigh the consequences.


Compensation culture

Whether we choose to admit it, we do live in a society where we have that attitude of “where there’s blame there’s a claim”. Slowly starting to match itself with the American culture of during everyone for everything.

The recent group litigation case against Maybelline, for misleading and false advertising that their lipstick lasts for 14 hours only backs up my point. You can read about it here, “A Kiss doesn’t last Forever” I mean seriously? How long did it take them to realise that the lipstick didn’t last that long, the lipstick itself only costs about $10 – how many did these women buy? They haven’t lost anything, apart from their cost of the lipstick. Surely damages for, I don’t know, consequential loss for not having red lips for as long as advertised is fool hardy!

The only outcome I can see from this is that we will have tag lines of a disclaimer stating that “the lasting effects may differ from person to person and may not be up-to 14 hours”, similar to mascara adverts where fake eyelashes are used and this is now stated on the advert.

It’s an invitation to treat anyway, and doubt it would be arguably similar to Carlill v Carbolic Smoke Ball Company due to them not staying “if it doesn’t we will give you compensation” or similar.

It make me angry when things like this case occur. What are the lawyers thinking? Obviously just thinking about their balance sheets and not whether the case would go anywhere.

This is the problem though, with all the adverts on TV, radio and magazines asking if you have been injured. Some solicitors even offering £1000 upfront or an iPad if you take your claim with them. Accidents just don’t happen anymore, it’s always someone’s fault.

A lot of people probably aren’t that Injured and are just looking for a quick payout because they can. How many fraudulent road traffic accidents are there? These are what are making our insurance premiums rise. It doesn’t matter about whether you have been involved in an accident it’s to do with the amount of fake claims that happen.

It’s those people that put people off from actually making a claim when they are injured. I feel guilty because I’m claiming for my two accidents I was involved in. Both which weren’t my fault.

The first was in October 2011 on the motorway where the other driver failed to stop, they wrote my car off. Yet a year later I’m still waiting for my car to be repaired or money for the pre-accident value. The second was in August and I was a passenger, I’m still in a lot of pain now as this accident exacerbated my previous injuries which I still wasn’t fully recovered from.

I’m clearly injured, yet why do I feel guilty? I’m within my right to claim as I have incurred losses. I’ve had no car for a year yet still have to pay the premium, I’ve been injured resulting in me having time off work (unpaid) which ruins my reputation as an employee for having time off as well despite the doctor signing me off. I’m currently writing this on my iPhone whilst tucked up in bed because of my injuries and not being allowed to drive to work.

I remember I had a client who I was interviewing for the beginning of their claim, they clearly hadn’t incurred any losses and were just like “yeah put that” in response to a question of “have you suffered from any chest problems…” Which there was then a series of multiple answers and they needed to tell me whether it was wheezy or phlegmy etc without me leading them.

Another client who claimed to be bedridden and then the insurance investigators visited and watched him run from downstairs to upstairs and get into bed.

It’s those people that present the bad reputation and give rise to the compensation culture.

The media and Solictors don’t help either, after all they are a business, trying to survive like the rest of us. But taking on claims like those, and continuing to run them even after that point is just wrong.

Just don’t get me started on PPI Claims. That’s a whole new rant all together (3 texts in a day I received telling me I was owed PPI of different amounts – I’ve never even taken out PPI) and one I shouldn’t get into considering I work on those sorts of cases – not that we are involved in the cold calling!

AR

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