Chapter 7: WHAT WE TALK ABOUT WHEN WE TALK ABOUT COMMON LAW: THE PRACTICE OF PRECEDENT INTRODUCTION The contention

n of this chapter is that the doctri e o! precede t i" #e"t "ee a" a practice through which many competing pressures are, if not reconciled, at least $ept i a %or$a#&e e'(i&i#ri(). Our study of precedent will begin with an o*er*ie% o! the te "io between hierarchy and !&e+i#i&it,.

 We will then look specifically at the: re&atio "hip #et%ee the Ho("e o! Lord" a d the Co(rt o! Appea&, and the po""i#&e de*e&op)e t o! a a&ter ati*e practice o! -(dicia& i terpretatio . The final sections will engage specifically with -(dicia& &a% )a$i / a d h()a ri/ht".

 We will see that it is di!!ic(&t to prod(ce a , c&ear o*erarchi / 0 1 theor, of judicial law making, as it re&ie" o the di"cretio a d "e "e o! a -(d/e to do the right thing. ather like a aymond !ar"er story, the unsaid is as important as the said. This theme points back at the practice of precedent: it is a way of readi /2 i terpreti / a d -("ti!,i / arguments within institutional constraints. The chapter will conclude with some final reflections on "(#"ta ti*e -("tice and proced(ra& &e/iti)ac,.

Ne% 3ectio : THE HIERARCH4 OF COURT3 AND BINDIN5 PRECEDENT The practice of precedent works within the conte#t of the court structure$ the hierarch, o! the co(rt" pro"ide the fundamental institutional structure. Cro"" a d Harri", The hierarchy of the courts is based on the 6re"pect6 /i*e to the deci"io " o! "(perior co(rt". The binding nature of precedent app&ie" to the i !erior co(rt". %owe"er, as the per"(a"i*e at(re o! a i !erior co(rt o a "(perior co(rt has not been a particularly contentious issue, %owe"er, note that these distincti"e features of precedent are introduced as being an accurate description &a't

present ()*. This is somewhat peculiar. +t suggests that the doctri e it"e&! i" de*e&opi / a d cha /i / o*er ti)e. ,ny global definition has to be sensiti"e to this particular problem$ a problem that corresponds with the idea that precede t i" a practice, and that practice" the)"e&*e" de*e&op. The doctrine asserts that decisions of the Ho("e o! Lord" #i d a&& the co(rt" #e&o% it in the hierarchy. Lo do Tra)%a," *. Lo do Cit, Co( ci& 078981 %a" ce tra& to the !o( datio o! %hat %a" to #eco)e the co *e tio a& !or) o! the doctri e.

Justice vs Hardship- Precedent more important than justice London Trams a! +n Lo do Tra)%a,", the %ouse of -ords decided that it was bound by its own pre"ious decisions: Of course, + do not deny that cases of indi"idual hardship may arise, and there may be a current of opinion in the profession that such and such a judgment was erroneous$ but %hat i" that occa"io a& i ter!ere ce %ith %hat i" perhap" a#"tract -("tice, as compared with the i co *e ie ce ... of ha"ing each .uestion subject to being re/arguarded and the dealings of mankind rendered doubtful by reason of different decisions, so that i tr(th there i" o !i a& co(rt o! appea&.

 0y -ords, interest rei publicae is that there should be finis litium sometime and there ca #e o !i i" &iti() i! it %ere po""i#&e to "(//e"t i each ca"e that it )i/ht #e rear/(arded #eca("e it i" : ot a ordi ar, ca"e6 whate"er that may mean.

 -ord %alsbury acknowledges that cases of i di*id(a& hard"hip )a, re"(&t from the %ouse of -ords being bound by its own decisions. %owe"er, the eed !or c&ear /e era& pri cip&e" o*er;ride" the hard"hip caused in indi"idual instances. 1oes the need for general principles also o"er/ride the re.uirement that the court make just judgments2 -ord %alsbury rules that -("tice i" o! &itt&e co "e'(e ce i co)pari"o %ith the eed !or !i a&it, i &iti/atio . %is argument de ie" that there could be such a thing as an e+traordi ar, ca"e where -("tice )a, de)a d a depart(re from general principles. -ondon Tramways lays down the parameters of modern practice demonstrating a preference for a c&ear2 ( a)#i/(o(" "tate)e t o! the #i di / at(re o! precede t.

 3ery little allowance is made for a departure from the hierarchical ordering of the courts. 3i+t,;ei/ht ,ear" &ater the Practice 3tate)e t o! 79<< stressed the need for the fle#ible de"elopment of the law

Practise "tatement #$%% &HOL vs HOL'- JP sti(( as )oundation *ut prevent injustice o Their -ordships regard the use of precede t a" a i di"pe "a#&e !o( datio upon which to decide what is the law and its application to indi"idual cases. o +t pro"ides at least "o)e certai t, (po %hich i di*id(a&" ca re&, in the conduct of their affairs, as well as a #a"i" !or the de*e&op)e t of legal rules. What does this tell us about the re/ shaping of the practice2 4recedent is now described as fulfilling a dual function: it has a doctri a& aspect / the de*e&op)e t o! &e/a& r(&e"2 a d a "ocia& !( ctio a" %e&&.

 We find a di!!ere t ar/()e t from that of -ord %alsbury: o Their -ordships ne"ertheless recognise that too ri/id adhere ce to precedent )a, &ead to i -("tice in a particular case and also unduly restrict the proper de"elopment of the law. The 4ractice 5tatement reclaims the concern for the indi"idual case$ it asserts that there i" o poi t ha*i / /e era& r(&e"2 i! the"e &ead to i -("tice in indi"idual instances. What is to be done2 Their Lord"hip" re"o&*e to :)odi!,6 the way they approach precedent: they will consider that they are or)a&&, #o( d by their pre"ious decisions, #(t2 i certai ca"e" the, %i&& depart from pre"ious decisions when it is right to do so. Ho% are %e to $ o% %he ti)e i" ri/ht2 the

 Their -ordships will consider: o the da /er o! di"t(r#i / the #a"i" on which co tract", settlements of propert, and !i"ca& arra /e)e t" ha"e been entered into and also the e"pecia& eed !or certai t, as to the criminal law. This gi"es some general guidelines as to how the judges will understand the institutional legitimacy of their practice. The &a% %o(&d #e i&&e/iti)ate i! it "i)p&, a""erted the eed !or /e era& r(&e", and i/ ored the !act that -("tice re'(ired general rules to be changed. %owe"er, the &a% %o(&d a&"o #eco)e i&&e/iti)ate i! it "i)p&, treated each ca"e a" e+ceptio a& and failed to de"elop general rules.

 -aw !(&!i&&" a "ocia& !( ctio : there is a social interest in settled general principles of law. +f there is an implicit acknowledgement of judicial law making in the Practice 3tate)e t, there is also an understanding that the po%er "ho(&d #e ("ed "pari /&, and that "ta#i&it, %o(&d (&ti)ate&, #e pre!erred to creati*it,.

+))ect o) P" +n the years after 6788, it indeed became clear that departi / !ro) precede t deci"io " would o &, ta$e p&ace i *er, rare circ()"ta ce". We can de"elop this point by e#amining some important decisions.

!i"il -aw/ Mi&ia /o" *. 5eor/e Fra $ 0e+p&ai #e&o%1 %ouse of -ords departed from a pre"ious decision, arguing that changing the law would enable the courts to $eep "tep %ith co))ercia& eed"6 and, furthermore, %o(&d ot &ead to =practica& a d proced(ra& di!!ic(&tie"6. The following passage from -ord Wilberforces judgment is worth considering in detail: o The law on this topic is judge/ made: o it has been built up o"er the years from case to case. o It i" e tire&, %ithi thi" Ho("e6" d(t,, in the course of ad)i i"teri / -("tice, to /i*e the &a% a e% directio in a particular case where, on principle and in reason, it appear" ri/ht to do "o. o + ca ot accept the suggestion that because a r(&e

i" &o / e"ta#&i"hed o &, &e/i"&atio ca cha /e it 9 that may be so when the r(&e i" "o deep&, e tre ched that it has i !ected the %ho&e &e/a& ","te), or the choice of a e% r(&e i *o&*e" )ore !ar;reachi / re"earch tha co(rt" ca carr, o(t. o +ndeed, from some e#perience in the matter, + am led to doubt whether legislati"e reform, at least prompt and comprehensi"e reform, in this field of foreign currency obligation, is practicable. o >(e"tio " a" to the reco*er, o! de#t" or o! da)a/e" depe d "o )(ch (po i di*id(a& )i+t(re" o! !act" a d )erit" as to make them )ore "(ita#&e !or pro/re""i*e "o&(tio " i the co(rt" o + think that we ha"e an opportunity to reach such a solution here.

o + would accordingly depart from the %a"ana ailways case and dismiss this appeal.

:#planation/ judge can alter what they made without refer to 4arliament howe"er not upset the deep/seated principles -ord Wilberforce argues that because the &a% i thi" area i" -(d/e )ade, it is &e/iti)ate to a&ter it pro*ided that :o pri cip&e a d i rea"o , it appears right to do so. The sterling principle for the award of damages had become anachronistic.
o

The law of damages has to $eep pace %ith )oder de*e&op)e t". There is thus a strong argument for change. %owe"er, it is also important to note that the r(&e ca #e cha /ed %itho(t (p"etti / other deep;"eated pri cip&e".

 0iliangos thus refers to a set of rules that may be of ancient pro"idence, but, because they are i a area o! -(d/e;)ade &a%2 it %o(&d ot #e ece""ar, to de!er to Par&ia)e t. o The particular )i+t(re o! :!act" a d )erit"6 makes this pre/eminently an area for judicial law making. 0iliangos indicates the factors that legitimise judicial law making in ci"il law.

!riminal -aw 6/ 3hi*p(ri/ depart due to the serious error in pre"ious case e"en cost the certainty +n . ". 5hi"puri, the Ho("e o! Lord" o*err(&ed it"e&!. The case concerned the construction of s.l of the !riminal ,ttempts ,ct 67;6. +n an ear&ier ca"e2 A derto *. R,a , the %ouse of -ords had argued that the section could be approached o the #a"i" o! a di"ti ctio #et%ee act" that %ere :o#-ecti*e&, i oce t6, and those that were not so considered. %owe"er, in 5hi"puri they were of the opinion that A derto had #ee %ro /&, decided. -ord <ridges judgment in 5hi"puri is worth looking at in detail, in particular his criticisms of the notion of objecti"e innocence.

 %e argues that the co cept i" :i capa#&e o! "e "i#&e app&icatio 6 i cri)i a& &a%. This is "ery emphatic language. The concept of objecti"e innocence makes little sense because it a*oid" the ce tra& co cept o! the actor6" i te tio . This is the e""e tia& i /redie t in the law of attempt. o Thus, if a person attempts to buy drugs, but is sold a harmless substitute, the criminal law must approach the attempted offence from the "iewpoint of the actors criminal intention. +t would be wrong to argue that objecti"ely the act is innocent because the drugs did not e#ist. o ,cts cannot be considered independently of the state of mind of the actor.

 -ord <ridge also stressed his own con"iction as a party to the decision that ,nderton was wrong. I! A derto %a" "o c&ear&, !&a%ed2 %hat co(r"e o! actio %a" ope to the Ho("e o! Lord"? +t was ot po""i#&e to di"ti /(i"h A derto !ro) 3hi*p(ri. I! their -ordships %ere #o( d by the unworkable test, the &a% o! atte)pt %o(&d #e #a"ed o !&a%ed co cept". The o &, a&ter ati*e %o(&d #e to i *o$e the Practice 3tate)e t. Was this a justifiable course of action2 Departi / !ro) a precede t ca"e %o(&d &ead to ( certai t, i the &a%.

 %owe"er, in 3hi*p(ri thi" %a" -("ti!ia#&e. ,s ,nderton was a recent decision, "ett&ed &a% had ot ,et de*e&oped. Ho%e*er2 thi" i" ot the deter)i i / !actor. The )o"t pre""i / !actor is the need to correct a "erio(" error6, a di"tor0tio 16 i the &a%. +t might appear, then, that any understanding of the interpretation of 5hi"puri is rooted i the co te+t o! the cri)i a& &a%, and the "erio(" error i %hich the Ho("e o! Lord" had !a&&e into in ,nderton.

!riminal case =/ Ho%e o*err(&ed L, ch 0rea"o a" #e&o%1 !an we obser"e a similar pattern if we turn our attention to a . ". %owe2 +n L, ch (144 for >orthern +reland " -ynch*, the %ouse of -ords had held that the de!e ce o! d(re"" %a" a*ai&a#&e to "o)eo e who had been charged with aiding or a#etti / )(rder. +n . ". %owe, the %ouse of -ords o"er/ruled this decision. ,s with 5hi"puri, we encounter "ery strong language. -ord <ridge asserted I ca !i d othi / &in' &ea*i / the &a% a" it pre"e t&, "ta d"6. %e went on to argue that an odd .uirk of the system had allowed the decision in -ynch to stand, despite the fact that four out of the se"en presiding law lords (in the appellate courts in >orthern +reland and :ngland* had rejected the reasoning in the case.

eason 6 : 1epart as it cannot justified on long settled authority -ord %ailsham argued that R. *. Ho%e a!!orded a :idea& a d e*er to #e repeated opport( it,6 to re;co "ider the issue from the standpoint of authority. , re"iew of the &a% o! ho)icide "tretchi / #ac$ to Ha&e a d B&ac$"to e showed that d(re"" had e*er #ee a*ai&a#&e !or )(rder. +t was possible to in"oke the 4ractice 5tatement because L, ch co(&d ot :#e -("ti!ied o a(thorit,6.

eason =: 4arliament refuse to legislate means court did not ha"e the right ?urthermore, -(dicia& &e/i"&atio @hadA @i L, chA pro*ed to #e a e+ce""i*e and perhaps impro"ident ("e o! the ( do(#ted po%er o! the co(rt" to create e% &a% by creating precedents in indi"idual cases. o The impro"ident use of judicial legislation in -ynch was also indicated by Par&ia)e t6" re!("a& to &e/i"&ate o the i""(e. o -ord <ridge pointed out that 4arliament had not acted on the eport of the -aw !ommissions recommendation to allow a defence of duress. Par&ia)e t6" re!("a& to legislate "(//e"t" that the -(d/e" "ho(&d ot ha*e ta$e upon themsel"es the reform of the law.

eason @: 1ecision is fundamentally wrong L, ch %a" !( da)e ta&&, %ro / in principle. -ord %ailsham justified this criticism by referring to the o*erridi / o#-ect" o! the cri)i a& &a% to "et "ta dard" o! co d(ct that are c&ear in specifying how people are to a"oid criminal responsibility. This means that the d(re"" de!e ce )("t ot #&(r the o!!e ce o! )(rder. The law must be based on the principle that it is e*er -("ti!ia#&e to co))it )(rder2 e*e to "a*e o e6" o% &i!e.

eason A :4ragmatic response is more important in criminal law 1oes this mean, though, that as other offences allow a duress defence, the criminal law is inconsistent2 This criticism is met with an argument from principle: co "i"te c, a d &o/ic . . . are ot a&%a," pri)e characteri"tic" of a pe a& code based like the common law on custom and precedent. +ndeed, if law is an art, rather than an e#act science, a pra/)atic re"po "e to pro#&e)" i" )ore i)porta t tha a co "i"te t de*e&op)e t o! a#"tract pri cip&e" @-("ticeA.

!riminal law summary What, then, can %owe and 5hi"puri tell us about the practice of precedent within criminal law2 The -aw -ords in both cases approach the law from the perspecti"e that there ha" to #e *er, co)pe&&i / ar/()e t !or cha /e. The Ho("e o! Lord" %i&& o*err(&e it"e&! %he it ha" !a&&e i to "erio(" error, and when the circumstances of the case are such that it i" practica& to o*err(&e an earlier decision. These arro% /(ide&i e" pre"er*e the &e/iti)ac, o! -(dicia& &a% )a$i /. The Ho("e o! Lord" i" e "(ri / the co "i"te t de*e&op)e t o! pri cip&e". !riminal law is legitimised as the courts di"pe& the error" i to %hich the, ha*e !a&&e .

 +t is not necessary to depart from the hierarchical organisation of the courts to achie"e this end.

Ne% 3ectio : HOL *" COA : PRECEDENT AND BU3TICE %owe"er, in turning to the .uestion of the !ourt of ,ppeals jurisdiction, we now ha"e to grapple with this "ery problem. %ow does this raise the problem of institutional legitimacy in a slightly different conte#t2 4erhaps one of the )o"t !ra(/ht .uestions in the area of precedent relates to the ri/ht o! the Co(rt o! Appea& to depart !ro) a -(d/)e t o! the Ho("e o! Lord". This is linked to the .uestion of %hether the Co(rt o! Appea& %a" #o( d to !o&&o% it" o% deci"io ".

CO, vs HOL-"chorsch -eier. CO, depart )rom HOL due to reasonin/ ceased *ut the case did not reach HOL unti( -i(ia/os Tensions between the !ourt of ,ppeal and the %ouse of -ords had de"eloped in 5chorsch 0eier. The Co(rt o! Appea& had argued that circumstances had changed so much since the %ouse of -ords ruling in %a"ana ailways that :the "ter&i / -(d/)e t r(&e6 pri cip&e "ho(&d o &o /er app&,. o This case happen before 0iliangos (%O-s decision* on the same issue

 1enning 0 stated that the underlying reason for damages being /i*e i "ter&i / %a" e""e tia&&, :practica&6 o 1uring the old time, it is practical to use sterling whate"er the trading. o 5o, the reasoning behind in the old case is practical issue %e went on to in"oke the principle cessante ratione legis cessat ipsa lex or 9 as he pithily put it :@"Aeei / that the rea"o " o &o /er e+i"t2 %e are at &i#ert, to di"card the r(&e it"e&!6. -ord 1enning justified this principle by arguing that it %o(&d #e %ro / to a#ro/ate "(#"ta ti*e ri/ht" #, re!ere ce to proced(ra& co cer " @ie o &, HOL ca o*err(&e HOL deci"io A. ?urthermore, he pointed out (and -awton -B agreed* that ,rticle 6C8 of the Treaty of ome re.uired that judgment should be gi"en in the

currency of the member state in which the creditor resided. This suggests the de"elopment of an alternati"e practice of interpretation that depart" !ro) the co *e tio a& ( der"ta di / o! the doctri e o! the hierarch, o! the co(rt".

HOL6" re"po "e; Co *e tio a& *ie% "ta d a" the rea"o i / cea"e to depart the co(rt e*e ca o*err(&ed Act o! Par&ia)e t The response of the %ouse of -ords 0iliangos. -ord 5imon, with the e#plicit agreement of -ord Wilberforce, re-ected Lord De i /6" ("e o! the ce""a te ratio e &e/i" ce""et ip"a &e+ pri cip&e. The %ide )ea i / of the principle would mean that a , co(rt co(&d :di"c&ai) a , a(thorit, o! a , hi/her co(rt on the ground that the reason which had led to such hi/her co(rt6" !or)(&atio o! the r(&e o! &a% %a" o &o /er re&e*a t6. ,pplication of the principle would mean that the co(rt co(&d e*e o*err(&e Act" o! Par&ia)e t2 if it judged that the reasons for the rule no longer applied$ as such, the rule has o p&ace i o(r o% )ode) co "tit(tio 6.

CO, vs CO,- 0oun/ case. CO, depart )rom its o n decision in the e1ception circumstances %owe"er, the matter now concerned the .uestion of %hether the Co(rt o! Appea& co(&d depart !ro) it" o% pre*io(" deci"io ". The con"entional position, as stated in 4o( / *. Bri"to& Aerop&a e Co. asserted that e*e i! the Co(rt o! Appea& re/retted a pre"ious decision, it %a" o#&i/ed to !o&&o% i! a d reco))e d a appea& to the Ho("e o! Lord". ,s the Co(rt o! Appea& %a" created #, "tat(te, it had to adhere to it" "tat(tor, po%er"2 and co(&d ot e+ceed it" &i)ited ro&e.

 Li)ited ro&e: o The o &, e+ceptio " to this rule (two of them apparent only* are those already mentioned which for con"enience we here summarise: o (6* The court is entitled and #o( d to decide %hich o! t%o co !&icti / deci"io " of its own it will follow. o (=* The co(rt i" #o( d to re!("e to follow a deci"io o! it" o% which, though not e#pressly o"erruled, ca ot, in its opinion, "ta d %ith a deci"io o! the Ho("e o! Lord". o (@* The court is not bound to follow a decision of its own i! it i" "ati"!ied that the deci"io %a" /i*e per i c(ria),

2roome case- CO, dec(are HOL per incuriam *ut rejected due to compromise the princip(e caused more injustice than to individua( 2roome *. Casse(( &67D=' The !ourt of ,ppeal had attempted to show that the %ouse of -ords had acted per incuriam, or incorrectly in the case Rookes v. Barnard &678A' The case concerned the issue of damages. -ord %ailsham articulated the con"entional position clearly: +n the hierarchical system of courts which e#ist in this country, it i" ece""ar, !or each &o%er tier2 i c&(di / the Co(rt o! Appea&2 to accept &o,a&&, the deci"io " o! the hi/her tier". -ord %ailshams words return to the notion that !ar %or"e tha i di*id(a& i -("tice i" the co)pro)i"e o! /e era& pri cip&e".

Tr! to re)orm- Davis v Johnson -ord 1enning attempted to a"oid this rule in Da*i" *. Boh "o . +n 1a"is ". Bohnson, the !ourt of ,ppeal considered the case of a *icti) o! do)e"tic *io&e ce. M" Da*i" had ( "(cce""!(&&, a"$ed the co(rt !or a order to co)pe& her a#("i*e part er to &ea*e the !&at that they had been sharing. To a&&o% her appeal, the !ourt of ,ppeal %o(&d eed to depart !ro) pre*io(" deci"io " where injunctions had not been awarded in similar situations. -ord 1enning made a strong argument from principle.

easons to depart: %e began by admitting that, in normal cases, the !ourt of ,ppeal was bound by its own pre"ious decisions. %e went on to criticise the conse.uences of this argument: o +t may be that an appea& i" e*er )ade to the Ho("e o! Lord", The e#ample is the 8C year period before the wrong decision in Car&i"&e a d C()#er&a d Ba $i / Co. Ltd. *. Bra// &6766' was corrected in 5a&&ie *. Lee &67D6' o or that there is a &o / de&a, before the %ouse of -ords has an opportunity to o"erturn an incorrect decision. o +t may be that an indi"idual &ac$" the !i a cia& )ea " to bring the appeal to the %ouse of -ords.

o This problem is compounded by the fact that %ea&th, &iti/a t" ca :pa, o!!6 appe&&a t", and so perpetuate a decision erroneous in law. o 0oreo"er, in the present case, the de&a, that a appea& %o(&d ca("e %o(&d add to M" Da*i"6 hard"hip. o 5he was resident in a battered womens refuge in appallingly o"ercrowded conditions

Denning: +n order to a*oid a&& the de&a, / and the injustice conse.uent upon it / it seems to me that this court, being con"inced that the t%o pre*io(" deci"io " %ere %ro /, "ho(&d ha*e the po%er to correct them and /i*e the"e %o)e the protectio %hich Par&ia)e t i te ded they should ha"e.

!hao in lower court2 >o, Bust follow latest decision There is a compelling case for the a"oidance of delay. %owe"er, %hat are the co "e'(e ce" o! a&&o%i / the Co(rt o! Appea& to o*err(&e it"e&!? Would the lower courts be left in confusion2 ?or instance, a -(d/e i a co( t, co(rt %o(&d ot $ o% %hich Co(rt o! Appea& ca"e "tated the correct &a%. Lord De i / ar/(e" that the &o%er co(rt %o(&d "i)p&, !o&&o% the &ater deci"io , based on the principle that a" &o / a" the &ater ca"e co tai " a :!(&& co "ideratio 6 o! the ear&ier ca"e", it was the preferable authority.

!O, has inherited power This is a good illustration of the conflict between general procedural principles and indi"idual injustice. <ut, how, as a .uestion of law, would it be possible to get around Eoung " <ristol ,eroplane !o., -ord 1enning showed that 2risto( ,erop(ane Co3 as not an accurate statement o) the (a 3 This argument returns to roots of the jurisdiction of the !ourt of ,ppeal. When the Co(rt %a" "et (p i 787C2 it %a" the !i a& appe&&ate co(rt, as the jurisdiction of the %ouse of -ords was not established until 6;D). The !ourt inherited the jurisdiction of the :#che.uer !hamber and the !ourt of ,ppeal in !hancery. ,s these co(rt" %ere a&%a," co "idered to ha*e the po%er to re*ie% their o% deci"io ", it

would be fair to assume that the new court had inherited this jurisdiction. The argument also returns to %utton ". <right which held that e*er, co(rt o! -("tice po""e""e" a i here t po%er to correct a error in which it had fallen.

!O, has the power to set a practise What conclusion can be drawn from this argument2 ,s -ord 1enning succinctly puts it, 4o( / *. Bri"to& Aerop&a e Co :o*err(&ed the practice o! a ce t(r,6. The Co(rt o! Appea& i" ot2 a" a )atter o! &a%2 #o( d to !o&&o% it" pre*io(" deci"io ". +t does so as a )atter o! -(dicia& co)it,6.

 ,rguing that the 79<< Practice 3tate)e t e!!ecti*e&, o*ert(r " the Lo do Tra)%a," ca"e, -ord 1enning concludes: o a r(&e a" to precede t 0%hich a , co(rt &a," do% !or it"e&!1 i" ot a r(&e o! &a% at a&&. o It i" "i)p&, a practice or usage &aid do% #, the co(rt it"e&! !or it" o% /(ida ce: and, as such, the "(cce""or" o! that co(rt ca a&ter that practice or a)e d it or "et (p other /(ide &i e", just as the %ouse of -ords did in 6788. We are compelled to the conclusion that the !ourt of ,ppeal can follow the 6788 4ractice 5tatement and depart from its own decisions if it considers them wrongly decided.

%O-/reject again These arguments were not ultimately successful. The con"entional form of the doctrine was re/asserted by the %ouse of -ords. o The %ouse of -ords rejected the argument that the !, could depart from its own decisions if it considered itself to be in error, and affirmed the doctrine with which we are familiar. o The CA i" #o( d #, it" o% deci"io "2 e+cept i the e+ceptio " &aid do% i 2risto( ,erop(ane

Precedent only relax in very rare situation The court co "idered the a&ter ati*e approach to the pro#&e) artic(&ated #, 3ir 5eor/e Bar$er P a d 3ha% LB i the Co(rt o! Appea&. The latter had argued that "tare deci"i" "ho(&d #e re&a+ed6 o &, when applying a precedent would mean that act(a& a d pote tia& *icti)" o! *io&e ce6 %o(&d #e depri*ed o! the protectio a!!orded the) #, a Act o! Par&ia)e t. +t was stressed that this "it(atio %o(&d #e *er, rare. %owe"er, Lord Dip&oc$ pre!erred that the Ho("e o! Lord" "ho(&d :re;a!!ir) e+pre""&,2 ( e'(i*oca&&, a d ( a i)o("&,6 the r(&e i Bri"to& Aerop&a e Co.

PS only for HO 3iscount 1ilhorne elaborated this argument. o +t had to be the case that the 6788 Practice 3tate)e t app&ied o &, to the Ho("e o! Lord". o +f it did not, any court could argue that it was not bound by its pre"ious decisions. -ord 1ennings argument ignored the uni.ue character of the %ouse of -ords sitting judicially. ,s the 4ractice 5tatement was based on this feature of the %ouse of -ords, it could not be e#tended to another court. -ord 5almon and -ord 1iplock elaborated this point by citing the concluding words of the 6788 5tatement: Thi" a o( ce)e t i" ot i te ded to a!!ect the ("e o! precede t e&"e%here tha i thi" Ho("e. !"aos #ill "appen in $% &udges in !O' ?urthermore, the fact that there are up to 6D -ord Bustice in the

!ourt of ,ppeal meant that, if -ord 1ennings arguments were followed to their conclusion, there was the risk that there would be a plethora of conflicting decisions which would lead to great confusion in the law.

(und pro)lem can )e solved )y grant t"e fund -ord 5almons argument goes some way to countering some of -ord 1ennings points about the de ia& o! -("tice2 #, propo"i / that the Co(rt o! Appea& co(&d #e /i*e a po%er to /ra t2 %he circ()"ta ce dictated2 the pa,)e t o! co"t" o(t o! p(#&ic !( d".

5ummary/ !O, still bounding its own decisions 1a"is ". Bohnson is a uni.ue case. ,lthough -ord 1ennings arguments make a compelling case for the !ourt of ,ppeal to respond to the demand for justice, the Ho("e o! Lord" e!!ecti*e&, a""erted that there are o e+ceptio " to the priority of general procedural rules. The case shows judicial law making at its most dramatic. 4erhaps this is precisely the problem. Lord De i / ha" a ecce tric appreciatio o! the #o( darie" of institutional legitimacy. He rai"e" the protectio o! "(#"ta ti*e ri/ht" o"er the general understanding of the limits of judicial creati"ity.

 For the p(rpo"e" o! o(r ar/()e t2 %e eed to &ocate a )ore )ode"t ( der"ta di / o! the &e/iti)ate para)eter" o! -(dicia& &e/i"&atio . Ho%e*er ; a" %e %i&& "ee to%ard" the e d o! the chapter ; "(#"ta ti*e i""(e" o! -("tice ca ot #e e tire&, e+pe&&ed !ro) -(dicia& practice.

Ne% 3ectio : BUDICIAL LAW MAKIN5 1etermining the boundaries of judicial law making is partly a doctri a& and partly a co "tit(tio a& '(e"tio . +f we re.uire some broad guidelines, a useful place to start is -ord 5carmans speech in McLo(/h&i Appe&&a t *. O6Bria . The appeal in this case raised the "ery .uestion of the re&atio "hip #et%ee the &e/i"&at(re a d the -(diciar,. -ord 5carman argued that the -(d/e had a -(ri"dictio o*er a co))o &a% that :$ o%" o /ap"6 a d o :ca"(" o)i""("6.

+1tend the (a *ut not create the ne (a +f this is the case, the task of the co))o &a% -(d/e i" to adapt the pri cip&e" o! the &a% to a&&o% a deci"io to #e )ade o the !act" in hand. This )a, i *o&*e the creatio o! e% &a%. Whate"er the case, -(dicia& rea"o i / #e/i " !ro) :a #a"e&i e o! e+i"ti / pri cip&e6. The judge works towards a solution that can be seen as an e+te "io o! pri cip&e #, proce"" o! a a&o/,. ?or -ord 5carman, this is the :di"ti /(i"hi / !eat(re o! the co))o &a%6: the judicial creation of new law, a" the -("tice o! the ca"e de)a d".

CL Jud/es i(( not )orm princip(es hich too po(ic! in nature This process may in"ol"e policy considerations, but, the judge can legitimately in"ol"e himFherself in this acti"ity, pro"ided that the primary outcome is the !or)atio o! e% &e/a& princip(es. +n those cases %here the !or)atio o! pri cip&e i *o&*e" too /reat a i tr("io i to the !ie&d o! po&ic,, the -(d/e )("t de!er to Par&ia)e t: o %ere lies the true role of the two law/making institutions in our constitution. o B, co ce trati / o pri cip&e the -(d/e" ca $eep the co))o &a% a&i*e, fle#ible and consistent, and ca $eep the &e/a& ","te) c&ear o! po&ic, pro#&e)" which neither they, nor the forensic process which it is their duty to operate, are e.uipped to resol"e. o +f pri cip&e &ead" to re"(&t" %hich are tho(/ht to #e "ocia&&, ( accepta#&e,

Par&ia)e t ca &e/i"&ate to dra% a line or map out a new path. This argument demarcates .uite clearly the role of judge and 4arliament. Budicial interpretation keeps the common law :!&e+i#&e6 a d re"po "i*e to cha /e, and de!er" to Par&ia)e t o tho"e i""(e" with which the co(rt" are ot %e&& e'(ipped to dea&.

Par(iament i(( overru(e the court decision *! ,ct o) Par(iament Par&ia)e t a&"o act" a" a !i a& ad-(dicator. +f the courts make mistakes, the, ca #e corrected #, &e/i"&atio .

4(e1i*i(it! in C3La Jud/es to ensure justice in modern or(d Di!!ic(&t to %ithdra% a &i e i rea& %or&d <ut <efore we e#amine this issue, howe"er, it is worth looking at another aspect of -ord 5carmans argument: o The rea& ri"$ to the co))o &a% is not its mo"ement to co"er new situations and new knowledge #(t lest it should stand still, ha&ted #, a co "er*ati*e -(dicia& approach. o +f that should happen, and "i ce the 79<< practice directio of the %ouse it has become less likely, there %o(&d #e a da /er o! the &a% #eco)i / irre&e*a t to the co "ideratio , and inept in its treatment, of )oder "ocia& pro#&e)". o B("tice %o(&d #e de!eated.

o The co))o &a% ha"2 ho%e*er2 a*oided thi" cata"trophe #, the !&e+i#i&it, gi"en it by generations of judges. This is the second reference to justice in this passage / and it might suggest that Lord 3car)a 6" acco( t o! -(dicia& creati*it, i" i deed ( derpi ed #, "(ch a co cept. +t is a description of the co))o &a% -(d/e as the /(ardia o! the co "cie ce o! the co))o &a%. The -(d/e i" char/ed %ith the de*e&op)e t o! the &a% i "(ch a %a, that it" pri cip&e" re)ai cohere t as it de"elops and adapts itself to cha /i / "ocia& co ditio ". Th(" the !&e+i#i&it, o! the co))o &a% is an e&e)e t o! %hat )a$e" it -("t.

,rgument: ?le#ibility "s Gncertainty of law %owe"er, things are somewhat more complicated. F&e+i#i&it, i" i "epara#&e !ro) the risk of ( certai t, in the law. This ri"$ *arie" %ith the co te+t of the legal problem under consideration. +n other words, problems of uncertainty take a different form in areas of commercial transaction and tortious liability for personal injuries. eturning to the issue of justice, -ord 5carman argues that -("tice ca de)a d a de/ree o! &o"" o! certai t, in the law (the search for certainty can obstruct the laws pursuit of justice, and can become the enemy of the good*. +n the area of damages for ner"ous shock, certai t, co(&d ha*e #ee achie*ed #, &ea*i / the &a% a" it "tood a" "tated #, a(thoritie" i the ear&, 79DD".

 %owe"er, the &a% ha" had to re"po d to ad*a ce" i :)edica& "cie ce6 a d tech o&o/,, and adapt the rele"ant test for !ore"eea#i&it,.

De*e&op)e t o! &a% @!&e+i#&eA &ead to ( certai &i e #t% Princip(e 5Judiciar!6 and Po(ic! 5Par(iament6 The e#tent of these de"elopments means that the pro#&e) ha" o% #eco)e o e !or Par&ia)e t. It i" hard to "ee preci"e&, %here the di*idi / &i e &ie" #et%ee pri cip&e a d po&ic,. Ar/()e t" o! pri cip&e ha*e #eco)e o*er;deter)i ed #, ar/()e t" o! po&ic,. We could say, then, that o e i)porta t e&e)e t of this theory of interpretati"e justice is that the -(d/e "ho(&d $ o% %he it i" ece""ar, !or Par&ia)e t to i ter*e e. What do we make of -ord 5carmans presentation of the role of the judge2 +t would be too #o&d to ar/(e that a&& -(dicia& acco( t" o! their ta"$ )a$e ("e o! a theor, o! i terpretati*e -("tice.

 %owe"er, in looking at some other important cases in which the role of judicial law making has been considered, %e ca pic$ (p a d de*e&op the co cer %ith -(dicia& de*e&op)e t o! the co))o &a%. We will e#amine a sample of cases from different areas of law.

R v R. a(thou/h judiciar! seem to ta7e ro(e o) (e/is(ation *ut (e/itimate due to update the CL to socia( chan/in/. e1ception i(( ma7e poor *asis to crimina( (a . (e/itimate to do so in the (i/ht o) ,ct o) Par(iament *ut not create a ne (a Re/i a *. R. i" perhap" o e o! the #e"t e+a)p&e" o! -(dicia& creati*it,. The %ouse of -ords determined that a h("#a d co(&d #e he&d /(i&t, o! rapi / hi" %i!e. This in"ol"ed a particularly #o&d i terpretatio o! the 3e+(a& O!!e ce" 0A)e d)e t1 Act 797<, which would otherwise seem to perpetuate the husbands e#emption to a charge of rape.

 +ndeed, -ord -ane asserted that this was precisely the conclusion to which a literal interpretation of the ,ct would come. He propo"ed a :radica&6 "o&(tio . +t was necessary to: o disregard the statutory pro"isions of the ,ct of 67D8 and &thus' ... it is said that it goes beyond the legitimate bounds of judge/made law and trespasses on the pro"ince of 4arliament. o +n other words the a#o&itio o! a r(&e o! "(ch &o / "ta di /2 de"pite it" e)a"c(&atio #, &ater deci"io "2 i" a ta"$ !or the &e/i"&at(re a d ot the co(rt".

o There are social considerations to be taken into account, the pri"acy of marriage to be preser"ed and .uestions of potential reconciliation to be weighed which make it an i appropriate area !or -(dicia& i ter*e tio . Lord La e6" i terpretatio o! the Act i" creati*e e o(/h to a)o( t to -(dicia& &e/i"&atio . Ho%e*er2 a/ai "t the"e :!or)ida#&e o#-ectio "6 i" the a(thorit, o! the -(d/e to (pdate the co))o &a% to :cha /i / "ocia& attit(de"6. F(rther)ore, the powerful authority "3 v3 H3-3 ,dvocate would appear to be on -ord -anes side. +n the wake of this case, the e+ceptio i" re*ea&ed a" :a !ictio 6$ and !ictio i" a poor #a"i" !or the cri)i a& &a%6. o &That mean e#ception for husband from rape is fiction'

 The conclusion of the argument is compelling: o +t seems to us that where the co))o &a% r(&e o &o /er e*e re)ote&, repre"e t" what is the true position of a wife in present day society, the d(t, o! the co(rt i" to ta$e "tep" to a&ter the r(&e i! it ca &e/iti)ate&, do "o i the &i/ht o! a , re&e*a t Par&ia)e tar, e act)e t. The legitimacy of the courts action is further -("ti!ied #, the !act that it i" ot creati / a e% cri)i a& o!!e ce, but re)o*i / !ro) the :co))o &a% a a achro i") that i" Eo!!e "i*eF to co te)porar, "ocia& attit(de" and standards of beha"iour.

C(e//-Judiciar! i(( not chan/e the princip(es hen Par(iament e1p(icit re)use to chan/e the (a R. *. C&e// "(//e"t" the $i d o! "it(atio in which a -(d/e %i&& ot &e/i"&ate. The %ouse of -ords refused to change the law in relation to the red(ctio o! )(rder to )a "&a(/hter %he e+ce""i*e !orce %a" ("ed in crime pre"ention. Why, in this instance, did their lordships refuse to alter the law2 -ord -loyds speech is instructi"e, in particular hi" re!ere ce to Lord 3i)o 6" di""e ti / "peech i L, ch. o +n L, ch the court justified its acti"ity because, de"pite ha*i / a La% Co))i""io report2 Par&ia)e t had ot acted2 th(" ope i / a opport( it, !or the co(rt$ an opportunity which in retrospect, it had ot #ee %i"e to ta$e.

o +n C&e//, -ord -loyd pointed out that de"pite the reco))e datio o! the Ho("e o! Lord" that a .ualified defence of using e#cessi"e force in self/defence &was' con"incing, Par&ia)e t had cho"e ot to cha /e the &a%. o The co(rt "ho(&d ot pre; e)pt (pre"ent smtg from happening* Par&ia)e t in cases where broad policy issues are in"ol"ed. ,lthough -ord 5imon acknowledges that judges do make law, they ha"e to refrain from so doing when po&ic, )atter" are i *o&*ed.

 4icking up on -ord 5imons principle, -ord -loyd argues that in distinction to egina ". . where the %ouse of -ords did change the common law without waiting for 4arliament to legislate, the present issue is indeed one for the legislature.

C * DPP/ ,(thou/h po(ic! received criticisms. *ut Princip(es that are considered *! other ,ct. then *etter (eave it )or the Le/is(ator to amend , "ariation on this theme can be found in C. *. DPP. The case concerned the concept of do&i i capa+, or the presumption that a child between 6C and 6A was in/capable of committing a crime. The %ouse of -ords refused to abolish the rule, ar/(i / that a&tho(/h it %a" ot co "i"te t&, app&ied, it %a" ece""ar, !or Par&ia)e t to &e/i"&ate. A ()#er o! Act" showed a de!i ite &e/i"&ati*e po"itio o the pre"()ptio o! do&i i capa+. Le/i"&atio "tre""ed that it %a" "ti&& ece""ar, !or the pro"ec(tio to "ho% that the chi&d $ e% that %hat "Ghe %a" doi / %a" :"erio("&, %ro /6.

 A&tho(/h this po&ic, had )et %ith o#-ectio " a d critici"), thi" %a" ot e o(/h to -("ti!, -(dicia& &e/i"&atio . ,gain, though, this begs the .uestion of where the &i e #et%ee -(dicia& i ter*e tio a d the correct pro*i ce o! Par&ia)e t &ie".

8round )or jud/e to 9(e/is(ate:hen there is )ina(it! 5no dou*t in so(ution and here Par(iament has not in re)usa( to amend -ord -owry is careful to point out that this is indeed a difficult line to draw. o %e draws support for the refusal to o"erturn the presumption from . ". Hearley where the %ouse of -ords refused to alter the hearsay rule.

 This allows certain guidelines to be posited: o +f the "o&(tio i" do(#t!(&, the -(d/e" "ho(&d #e%are of imposing their own remedy. o Ca(tio "ho(&d pre*ai& i! Par&ia)e t ha" re-ected opport( itie" of clearing up a known difficulty or has legislated, while lea"ing the difficulty untouched. o Di"p(ted )atter" o! "ocia& po&ic, are &e"" "(ita#&e area" !or -(dicia& i ter*e tio than purely legal problems. o F( da)e ta& &e/a& doctri e" "ho(&d ot #e &i/ht&, "et a"ide. o B(d/e" "ho(&d ot )a$e a cha /e ( &e"" the, ca achie*e !i a&it, and certainty.

 +t is hard to know what the status of these guidelines is. ,lthough !. ". 144 has been an influential decision in the area of criminal responsibility, but -ord -owrys thoughts on judicial acti"ism do not appear to ha"e been cited. Ho%e*er2 the"e pri cip&e" /o "o)e %a, to artic(&ati / the area" %here -(d/e" ca "a!e&, &e/i"&ate. The /ro( di / idea appears to be deference to 4arliament %he the :"o&(tio i" do(#t!(&6 ; or ; Par&ia)e t ha" a&read, co "idered the i""(e a d re!("ed to &e/i"&ate. There i" a&"o a pre"()ptio a/ai "t cha /i / the &a%$ and cha /e "ho(&d o &, co)e %he it #ri /" %ith it :!i a&it, a d certai t,6. o Lord Lo%r,6" /(ide&i e" are co /r(e t %ith tho"e o! Lord L&o,d i C&e//.

Pu*(ic consensus issue 5uncertain va(ue upho(d *! pu*(ic6 (e)t to Par(iament +n case it seems like all the e#amples that we ha"e chosen come from criminal law, consider Aireda&e NH3 *. B&a d o a case that raised difficult moral, ethical and legal issues about the role to be played by medicine in keeping ali"e someone in a per"i"te t *e/etati*e "tate (4.3.5.*. o On the facts of this case, the court had to deter)i e %hether or ot the patie t6" treat)e t co(&d #e co ti (ed. o 0edical opinion was unanimous that there was no hope of reco"ery.

o The court found that there could be no further benefit to the patient of continuing medical treatment$ and held the medical staff no longer under a duty to continue treatment sustaining the patients life. -ord <rowne/Wilkinson took the opportunity to consider the correct role of the courts in such a fraught area. 4recisely because there was o co "e "(" i "ociet, a#o(t the correct *a&(e" that should inform this area of )edica& ethic", it was ot !itti / for the -(d/e" to :de*e&op e%2 a&& e)#raci /2 pri cip&e" o! &a%6 that only reflect indi"idual judges moral stance. A -(d/e th(" )("t %or$ %ith the :e+i"ti / &a%6.

 ,lthough this is in itself unsatisfactory / a -(d/e %a" ( "(ited to co "ider the %ider i""(e" that were attendant on the decision in this gi"en case. Ii"en these circumstances, -ord <rowne/Wilkinson considered that it was :i)perati*e that the )ora&2 "ocia& a d &e/a& i""(e" rai"ed #, thi" ca"e "ho(&d #e co "idered #, Par&ia)e t6. It %a" (p to Par&ia)e t2 a d the :de)ocratic proce""6 to /i*e *oice to pri cip&e" that re!&ected a co "e "(".

"ummar!- (e/itimate *oundar! remain unc(ear. institutiona( (e/itimac! i(( ma7e us understand some issue *ut e i(( never 7no *e)ore e 9/et in: Ho ever. hat e 7no is the practices and (e/itimac! o) institution is trans)ormin/ C&ear&, the &e/iti)ate #o( darie" o! -(dicia& &a% )a$i / are di!!ic(&t to dra% precisely. Lord Lo%r,6" /(ide&i e" "(//e"t "o)e o! the !actor" that a -(d/e %o(&d ta$e i to acco( t, ho%e*er, how these factors are weighed, or, the e#tent to which other factors may be influential, i" i)po""i#&e to deter)i e i a#"tractio . That common law interpretation proceeds for the )o"t part %itho(t "(ch /(ide&i e" #ei / a#"o&(te&, e+p&icit, suggests they may be e)#edded %ithi -(dicia& c(&t(re i "(ch %a," that )a , e&e)e t" re)ai

o#"c(re to o#"er*er" a d co))e tator".

 , general statement about i "tit(tio a& &e/iti)ac, )a, a&&o% (" to /&i)p"e the co to(r" o! the practice, #(t it %i&& e*er a&&o% (" to /et :i "ide6 it" operatio . We are a#&e2 ho%e*er2 to !(rther e+p&ore the %a, i %hich the practice i" tra "!or)i / it"e&! / and the para)eter" o! i "tit(tio a& &e/iti)ac, are #ei / re; e/otiated.

Ne% 3ectio : BUDICIAL LAW MAKIN5 AND THE HUMAN RI5HT3 ACT Human ri/ht e1tend ide(! A!ter the HRA #eca)e &a%, there were a number of important cases where the -(d/e" too$ a partic(&ar&, creati*e approach to rea&i"i / Co *e tio ri/ht" i Briti"h &a%. ,s this is a comple# area, we will deal with two outstanding e#amples.

;ena*(es and Thompson case- HR app(ied On(! protect in e1treme case hen HR is at sta7e The first case, He a#&e" a d Tho)p"o *. Ne%"/ro(p Ne%"paper" &=CC6' o concerned two children who were con"icted of the murder of another child. 3enables and Thompson %o the co ti (atio o! i -( ctio " pre"enting newspapers publishing information about them. +n granting the injunctions, the co(rt ar/(ed that it co(&d protect co !ide tia& information in e+ceptio a& ca"e" %here it %a" "trict&, ece""ar,6. Ii"en the notoriety of 3enables and Thompson, it %a" *er, &i$e&, that the, %o(&d #e "erio("&, i -(red i! the pre"" did re*ea& their ide titie" or whereabouts on their release from custody.

 0ost interestingly, the court argued that: o the ECtHR app&ied i thi" ca"e *ia the o#&i/atio o the co(rt" i the H()a Ri/ht" Act, e*e tho(/h the de!e da t e%"paper" %ere ot a p(#&ic a(thorit, and the di"p(te %a" o e #et%ee pri*ate partie". o The claimants rights under Artic&e" I2 C a d 8 o! the ECtHR %ere at ri"$2 a d had to #e #a&a ced a/ai "t Artic&e 7D. =/right to life, @/probihit torture, ;/right to pri"ate and family 6C/ freedom to speech

 What can we summarise from this argument2 +t would appear that the co(rt %i&& (ti&i"e the HRA i di"p(te" #et%ee pri*ate partie" o &, i e+ceptio a& circ()"ta ce", and where there %ere "i/ i!ica t h()a ri/ht" i""(e" at "ta$e. This probably means that the co(rt" %i&& re!rai !ro) e)p&o,i / the HRA i a&& #(t the )o"t e+tre)e ca"e".

Dou/(as v He((o- Human ri/ht protected in ri/ht to privac! as e(( hich court re(uctant to reco/nise in the past &ar/ument )or point a*ove' This authority can be placed against Do(/&a" *. He&&o @IDD7A. On "ery different facts, the court showed that it was %i&&i / to protect the pri*ac, o! ce&e#ritie" a/ai "t -o(r a&i"t" using particularly intrusi"e methods of photography. !onsider 5edley -Bs argument that the co(rt" "ho(&d reco/ i"e a ri/ht o! pri*ac,. 5edley -B begins by pointing out that the co))o &a% a d e'(it, ha*e de*e&oped "&o%&, and by une"en degrees$ moreo"er, the, ha*e te ded to #e :reacti*e6. ,rguably, the time has come for the articulation of discrete

principles of law that relate to the protection of pri"acy.

 Why is this2 The rea"o " are t%o!o&d. ?irst, e'(it, a d the co))o &a% are toda, i a po"itio to re"po d to a i crea"i /&, i *a"i*e "ocia& e *iro )e t #, a!!ir)i / that e*er,#od, ha" a ri/ht to "o)e pri*ate "pace. 5econdly, and in any e"ent, the H()a Ri/ht" Act 7998 re'(ire" the co(rt" o! thi" co( tr, to /i*e appropriate e!!ect to the ri/ht to re"pect !or pri*ate a d !a)i&, &i!e as set out in ,rticle ; of the :uropean !on"ention on %uman ights and ?undamental ?reedoms. 5o, in 1ouglas, the court felt that it was o% ece""ar, to de*e&op a :po"iti*e i "tit(tio a& o#&i/atio to re"pect pri*ac,6. Thi" i" a #o&d deci"io , and the co(rt" had #ee "tr(//&i / %ith the i""(e o! pri*ac, !or a &o / ti)e prior to this case.

 What Do(/&a" doe" ot "(//e"t is that, in all areas of law, the co(rt" %i&& ta$e (po the)"e&*e" the o#&i/atio to e+te d the HRA to co*er pri*ate partie". >e"ertheless, 1ouglas does suggest that the co(rt" %i&& ta$e "erio("&, the need, in certain situations, to )a$e "(re that a &i)ited i terpretatio o! the Act doe" ot &ead to ri/ht" a#("e".

5ummary We will pick up on these themes in later chapters. We can temporarily conclude that the HRA ha" acted a" a cata&,"t to -(dicia& creati*it,, #(t, a" %e %i&& "ee i the e+t "ectio , it ha" ot rede!i ed the i "tit(tio a& co "trai t" in which judicial law making ta$e" p&ace.

Ne% 3ectio : THE HUMAN RI5HT3 ACT AND PERTURBATION3 IN BUDICIAL PRACTICE %as the %uman ights ,ct impacted on the judges perception of the boundaries of their law making powers2

 The differences of opinion shown in the approach to the retrospecti"e effect of the % ,, o That the % , introduced a disturbance or a perturbation into the judicial practice of precedent is e"idenced by the cases . ". -ambert &=CC6' and . ". Hansal &=CC6' o +n -ambert the %ouse of -ords held that the HRA "ho(&d ot ha*e retro"pecti*e e!!ect. o The same .uestion was raised in Hansal, and their -ordships felt that, although La)#ert %a" a do(#t!(& a(thorit,2 #(t o it "ho(&d #e !o&&o%ed. o Thus Ka "a& "ho%" the -(d/e" !ee&i / their %a, i to a e% -(ri"pr(de ce o! the H()a Ri/ht" Act$ their different approaches all suggest the "arious orientating points that a new interpretati"e practice might take.

 %owe"er, perhaps the most interesting factor is the assertion of the importance of a cohere t practice o! precede t i a ti)e o! do(#t. +t is perhaps not so much moti"ated by a political conser"atism, but an inbuilt appreciation that a practice takes its primary orientating points from what has been$ from the way in which people ha"e beha"ed in the past.

HRA o

-(dicia& precede t i""(e

Leed" Cit, Co( ci& *. Price and Ka, *. Lo do Boro(/h o! La)#eth @IDD<A are the key cases. -ord <ingham outlined the fundamental point. The issue was: o %hether a co(rt which would ordinarily be #o( d to !o&&o% the deci"io " o! a other co(rt hi/her in the domestic curial hierarchy is, or should be, o &o /er #o( d to !o&&o% that deci"io i! it appear" to #e i co "i"te t %ith a &ater r(&i / o! the co(rt i 3tra"#o(r/.

<a=i- Propert! (a not a/ainst ,3> *! HOL To understand this .uestion, we ha"e to reconstruct the conte#t / and this takes us to a line of cases that considered ,rticle ; in the light of fundamental principles of the law of property. ;/no interference from public to the right of home +n Harro% LBC *. >aJi2 the p&ai ti!! had attempted to use an argument #a"ed o Artic&e 8 to de!eat po""e""io proceedi /" #ro(/ht a/ai "t hi) #, the &oca& a(thorit,. 1espite the dissent of -ords <ingham and 5teyn, The Ho("e a""erted that propert, &a% ri/ht" co(&d ot #e &i)ited #, Artic&e 8. That mean ,.; did not pre"ent property law right applied. +f ,.; applied, then local authority cannot claim the possession as it is disturb right to home

Connor- it is *reach o) ,3> *! +CtHR 5oppose to case a*ove6 +n Co or *. UK2 the :!t% found that there had been a #reach o! Artic&e 8 on similar facts relating to the e*ictio o! tra*e&&er" !ro) &oca& a(thorit, &a d. 5trasbourg held that the co( ci& had to e"ta#&i"h that there %a" a co)pe&&i / rea"o !or the i ter!ere ce %ith Artic&e 8 rights. That mean <a=i and Connor stand )or di))erent vie

Reconci(e the *oth vie - CO, *ound to HOL +n Leed" Cit, Co( ci& *. PriceGKa, *. Lo do Boro(/h o! La)#eth a specially con"ened %ouse of se"en had to reco ci&e >aJi a d Co or. The, did "o #, ar/(i / that "o)eo e %ho c&ai)ed that hi" or her Artic&e 8 ri/ht" had been breached )("t #e /i*e a opport( it, to "ho% that Artic&e 8 did app&,. %owe"er, there was o o#&i/atio o the part, "ee$i / to a""ert their propert, &a% ri/ht" 0 ot HR1 to "ho% that their ar/()e t %a" -("ti!ied. %a"ing reconstructed the conte#t, we can t(r to the i""(e o! precede t. The Co(rt o! Appea& had co "idered the)"e&*e" #o( d #, >aJi 0HOL1 / but this case %a" o(t o! &i e %ith Co or.

Precedent uphe(d despite inconsistenc! What was the correct course of action2 The ci"il liberties groups who bad inter"ened in the case (r/ed that a &o%er co(rt "ho(&d #e e tit&ed to !o&&o% ECtHR r(&i /" c&ear&, i co "i"te t %ith ear&ier do)e"tic a(thoritie". This co(r"e o! actio %o(&d #e ope to a co(rt %he a 3tra"#o(r/ ca"e &aid do% a c&ear pri cip&e that comprehended both Co *e tio &a% a d do)e"tic &a% a d %a" ot i co "i"te t with any rele"ant statute. The Ho("e o! Lord" did a/ree. ot

-ord <inghams leading judgment began by stressing the ce tra&it, o! the doctri e o! precede t to the de*e&op)e t o! E /&i"h &a%.

 %e .uoted the 6788 4ractice 5tatement, and returned to the words with which we are now familiar: precede t i" :a i di"pe "a#&e !o( datio 6 to the co))o &a%. ,n integral part of the jurisprudence of the 6788 4ractice 5tatement is that it o &, app&ie" to the Ho("e o! Lord". -ord %ailshams argument in <roome ". !assell J !o -td is not cited because it is too well known to call for repetition. <roome case, !O, declare %Odecision is per incuriam which rejected by %O I! Lord De i / %a" ( a#&e to di"t(r# this principle, it is ( &i$e&, that h()a ri/ht" %i&& (p"et the !( da)e ta& ter)" of judicial practice.

Depart )rom precedent ru(e c(ear inconsistent? No@-

hen

#3 Court i(( come out di))erent vie even on the same issue. *etter (eave the inconsistent to HOL The %ouse had been presented with arguments that called for a modification of the rules of precedent. They rested on assertions that a lower court could follow a 5trasbourg ruling in preference to one of the %ouse of -ords %here there i" c&ear i co "i"te c, #et%ee the ECtHR a d the E /&i"h a(thorit,. %owe"er, as -ord <ingham argued, the pre"e t appea& 0Leed" *. PriceGKa, *. Lo do Boro(/h o! La)#eth1 shows that i co "i"te c, i" it"e&! di!!ic(&t to deter)i e.

 The appe&&a t" a d the Co(rt o! Appea& i Leed" *. Price had ar/(ed that there %a" a c&ear i co "i"te c, #et%ee >aJi a d Co or$ the respondents and the !ourt of ,ppeal had taken the opposite position. :choing the criticisms made of -ord 1ennings attempts to apply the 4ractice 5tatement to the !ourt of ,ppeal, Lord Bi /ha) i *o$ed the "pectre o! co !("io that %o(&d ha( t the co))o &a% if the settled arrangements for the creatio o! a(thoritie" %ere di"t(r#ed. The appellants argument suggested that different county court and %igh !ourt judges, and e*e di!!ere t di*i"io " o! the Co(rt o! Appea&6 )i/ht ta$e :di!!eri / *ie%" o! the "a)e i""(e6.

 Faced #, the cha&&e /e o! h()a ri/ht" &a%2 the 2 %e !a&& #ac$ o o(r tr("ted i "tit(tio ". The certainty of the common law is achie"ed by adheri /2 e*e i the Co *e tio co te+t2 to o(r r(&e" o! precede t6. +f an authority is inconsistent with a 5trasbourg ruling, the it i" #e"t dea&t %ith a" a appea& ; a d the Ho("e o! Lord" /i*e the opport( it, to prod(ce a de!i iti*e "tate)e t o! the &a%. -ord <ingham supports his position with a second argument.

A3 Constructive dia(o/ue *t nationa( and +CtHR to decide ho convention app(ied in domestic ie the precedent shou(d *e app(ied The !on"ention re'(ire" a co "tr(cti*e dia&o/(e #et%ee atio a& co(rt" a d the ECtHR. The ECtHR ha" the a(thorit, to pro o( ce o the Co *e tio and the correct i terpretatio of its principles. %owe"er, in its decisions on particular casesthe ECtHR a&&o%" a "i/ i!ica t :)ar/i o! appreciatio 6 to atio a& co(rt" / and i partic(&ar to their ( der"ta di / o! the !act" o! the ca"e.

 This means that the atio a& co(rt )("t decide preci"e&, ho% the Co *e tio app&ie" and how the principles e#pounded in 3tra"#o(r/ "ho(&d #e app&ied i the "pecia& co te+t o! atio a& &e/i"&atio 6. +f the national courts ha"e to apply !on"ention jurisprudence, then the, )("t do "o i the pre*a&e t ter)" o! a atio a& &e/a& ","te): thus, as far as the GH is concerned: the ordi ar, r(&e" o! precede t "ho(&d app&,.6

Partia( e1ception to JP ith HR,B I) the HOL case *e)ore the HR, inconsistent ith the HR,. then )o((o HR, There is one partial e#ception to this principle. +n 1. ". :ast <erkshire !ommunity >%5 Trust, the Co(rt o! Appea& had ar/(ed that the Ho("e o! Lord" i K 0Mi or"1 *. Bed!ord"hire CC9I "ho(&d ot #e !o&&o%ed. The decision in K ". <edfordshire !! was prior to the H()a Ri/ht" Act and #a"ed o rea"o i / a d :po&ic, co "ideratio "6 that were i co "i"te t %ith the Act. The Ho("e o! Lord" i D. had a/reed with the !ourt of ,ppeal. Note2 ho%e*er2 the "pecia& co "ideratio " that app&ied i thi" ca"e.

 The 799L r(&i / of the Ho("e o! Lord" had co tai ed o re!ere ce to the Co *e tio . ?urthermore, the app&ica t" i D. had "(cce""!(&&, ar/(ed a #reach o! Artic&e C in 5trasbourg, and o#tai ed "i/ i!ica t da)a/e". -ord <ingham notes: "(ch a co(r"e i" ot per)i""i#&e e+cept %here the !act" are o! that e+tre)e character.

That mean HR, ma7e JP chan/e its app(ication*+ ,ot so from t"e case -ay What do we make of this2 !ould the case be seen as a !ai&ed opport( it, to re;i *e t #oth the doctri e a d -(dicia& practice2 Harri" has suggested, albeit in a different conte#t, that the pri cip&e o! o*err(&i / eed" to #e re;co "idered. %e argues that the present practice of a&&o%i / %ro / precede t" to "ta d "tre""e" the *a&(e o! certai t, at the co"t o! the :'(a&it, o! -("tice6. %e argues that the #etter approach %o(&d #e !or the !i a& appe&&ate co(rt to :depart !ro) precede t a!ter ","te)atica&&, %ei/hi / (p a&& the co)peti / co "ideratio "6. +n some cases there may be compelling reasons for the decision to stand, in others, the weight of

the argument may be to o"errule and re/state the correct principles. The doubts e#pressed by the -ords suggest that the i""(e" rai"ed i Leed" Cit, Co( ci& *. PriceGKa, *. Lo do Boro(/h o! La)#eth %ere ot cri"p e o(/h to make this case a c&ear a(thorit, for the eed to re;de!i e precede t i "(ch a dra)atic %a,. +n a later chapter, we will see that -eeds !ity !ouncil ". <riceFHay ". -ondon <orough of -ambeth raised issues with the so/called )irror pri cip&e that should guide the relationship between domestic courts and 5trasbourg. <oth help to de"elop human rights We will pick up on these themes in !hapter ;, but, we need to point out that since the ruling of the 5upreme !ourt in 4innock, the issues that arose in 4riceFHay ha"e effecti"ely been resol"ed.

Domestic Court )o((o hich decision i) in con)(icts? Other perturbations in the doctrine of precedent take us to the re&atio "hip" #et%ee the do)e"tic co(rt". We need to make a brief re!ere ce to ".< o! the HRA. Rig"t to a fair trial , -(d/e is co "idered to #e a p(#&ic #od, for the purposes of this section of the ,ct.

,s a public body, a judge must issue rulings that are !on"ention compliant.

The following .uestion thus arises: if a -(d/e i" !aced %ith a #i di / deci"io from a "(perior co(rt, which is in co !&ict %ith the Co *e tio , should "Ghe !o&&o% the Co *e tio or the deci"io of the national court2

Hi/h Court depart )rom CO, 5prior ,ct decision6 This was the di&e))a !aci / Ead, B i the Hi/h Co(rt. C(&a e *. Morri" &=CC)' concerned s.6C of the De)amation ,ct #$CA and the defence of .ualified pri"ilege. The !, had determined in 4lummer ". !harman &678=' that there were limitations on the defence during a period in which an election was taking place. This i terpretatio o! the Act %a" ar/(a#&, o(t o! &i e %ith the Co *e tio $ and Ead, B %a" co)pe&&ed #, the HRA to co "tr(e the De!a)atio Act a" Co *e tio co)p&ia t and depart !ro) the r(&i / o! the Co(rt o! Appea&.

Depart )rom the case 5decided a)ter ,ct6 as the case o) hi/her court did not re(ated to HH !ulane ". 0orris has to be distinguished from the issues that arose in Mi&&er *. H(&&. Mi&&er *. B(&& @IDD9A raised comple# technical issues in relation to the :lection 4etition ules 678C. The !ourt of ,ppeal had decided in Ah)ed *. Ke ed, @IDDIA that it was not possible to e#tend certain time limits relating to security for costs$ with the conse.uence that the election petition failed. Thi" ca"e had #ee decided a!ter the HRA, but o ar/()e t" had #ee )ade %hich addre""ed the h()a ri/ht" concerns, in particular about a potential breach of ,rticle 8.

 <ut I Mi&&er (case later*, a breach of ,rticle 8 was pleaded / and T(/e dhat B decided that he %a" ot #o( d #, Ah)ed *. Ke ed,, pre!erri / a approach to the e&ectio petitio that %a" i accorda ce %ith Artic&e <.

Ne% 3ectio : CONCLU3ION +t is hard to thi $ a#o(t the i)pact o! h()a ri/ht" o -(dicia& practice in terms of the o&d de#ate" ce tri / o 3chor"h Meier a d Da*i" *. Boh "o . Whilst Hay shows that the co(rt" are ot "(dde &, /oi / to depart from the hierarchic structure of the common law, h()a ri/ht" &a% ha"2 i certai area"2 #ee the "p(r to the creatio o! e% &a%. +t would be pre"()pt(o(" to "ee thi" a" a co "tit(tio a& re*o&(tio . ,fter the %uman ights ,ct, -(d/e" are doi / preci"e&, %hat the, did #e!ore the Act ca)e i to !orce: )a$i / &a%. +t may be that the mechanisms of the H()a Ri/ht" Act &ead to a

re;%or$i / o! -(dicia& practice / "(#t&, "hi!ti / the "e "e o! %here the &e/iti)ate #o( darie" o! -(dicia& &e/i"&atio &ie. Gltimately, this is what )a$e" it di!!ic(&t to o!!er a , !i a& co c&("io . 4ractices take time to de"elop. +t will be interesting to see the precise form that the judicial practice of precedent will assume.