Intro- common law is created through the doctrine of precedent. There are many feature of judicial precedent which enable the system to work effectively. Some allow judges to show creativity and develop common law, however some restrict this.
Features that limit creativity
-Stare decisis-the principle means that judges mustfollow what went before
-Ratio decidendi-the RD is the binding precedent meaning that once it has been created it must be followedin all future cases. E.g.R v Brown
-Hierarchy of courts-lower courts are bound by the decisions of courts above them meaning that they have to follow decisions made in higher courts. The supreme court and court of appeal
Features that aid creativity
-Obiter dicta-judges choose whether or not they follow the persuasive precedent, if they do follow the persuasive precedent it then becomes the RD and therefore creates a new common law. e.g. R v Wilson and R v Brown
-Original precedents-if a judge has to make a decision an area where no previous laws then that judge is creating a new law.
-Overruling-higher courts can always overrule earlier precedents set in lower courts.
-Overruling + practice statement-the practice statement was issued in 1966 to allow the SC to avoid their own decisions where it appears right to do so.E.g. in R v G and Another it was decided that recklessness should always be subjective which overruled the decision made in r v Caldwell.
-Overruling in the COA-the…
Judicial Creativity is where judges develop and shape the law. This occursas a result of their interpretation of statutes and following of the rule of precedent whilst deciding cases – either departing from decisions in earliercases or applying existing principles to new situations. Under the rules of precedent, decisions from the appellate courts (House of Lords, Court of Appeal and High Court) have a binding influence over the judges in lowercourts – they must follow the higher courts over previously decidedprinciples. Persuasive precedent also exists through obiter dictastatements from the HL or CA, from courts in other jurisdictions as well asrulings from the Privy Council. It was held in the 19
century that judgesdidn’t make law; they simply declared it. (Lord Esher – Willis v. Baddeley) However, this was dispelled by Lord Reid in 1972, who stated that
“we don’t believe in fairy tales anymore so we must, for better or for worse, accept that judges do create law”
Judges are creative in many ways, primarily though, through theinterpretation of statutes. Usually, judges apply the statute law to the casethey’re dealing with, especially if it is clearly worded and unambiguous,and then it’d be applied word for word. However, when a case arrivesbefore a judge and where a literal interpretation would result in injustice,the judge must utilise a different rule of interpretation such as the GoldenRule (R v. Allen) or the Mischief Rule (Smith v. Hughes), this allows adegree of creativity in the application of the law. The Golden Rule allowsthe judge to depart from the original meaning of the Act in order to avoidan unjust result. Adler v. George saw
“in the vicinity of”
come also to meaninside of as well as in the environs of. The Mischief Rule aims to identifythe “mischief” that the Act was passed to prevent and adjust their decisionas appropriate. The rule was established in Heydon’s Case (1584) and isalso known as the British Rule. The case of Royal College of Nursing v.DHSS provides an excellent example of what the Mischief Rule wasintended to do. Due to medical advancements, by the time of the case,nurses were able to carry out the second half of an abortion procedure;however, this was contrary to the provisions of the Abortion Act (1967)which stated
“a person shall not be guilty of an offence under the lawrelating to abortion when a pregnancy is terminated by a registeredmedical practitioner”
therefore making the activity of the nurses a criminaloffence. Prosecuting nurses doing their job wasn’t what was intended byParliament when they made the law; the judges agreed that the mischief that the law intended to guard against was dangerous “backstreet”abortions and ruled that the nurses’ actions were, in fact, legal. CommonLaw is an integral part of the British Constitution and of the legal system.It’s not passed by Parliament but created through the decisions of judgesin cases which then have a binding influence over other judges under thesystem of precedent. This gives judges another opportunity to exercisesome creativity whilst presiding over cases through: overruling, reversal,new issues and extending the legislation.