Bournemouth and

Poole College

Sixth Form Law

Bournemouth and

 Poole College

Text Only

Privacy & cookies

Change Text Size

Sixthform logo

Cases - judicial creativity

Sixthform logo

Home | Dictionary | Past papers | Cases | Modules | Exam dates  | National Exam Results | What's new?

Google logo

 

[Home][Index - Cases][ Cases sources of law][Cases - judicial creativity]

A, R v (Complainant's sexual history) [2001] HL

Abbott, R v [1976] PC ( Trinidad )

Airedale NHS Trust v Bland [1993] HL

Alcock v Chief Constable of South Yorkshire [1991] HL

Anisminic Ltd v Foreign Compensation Commission (1969) HL

Anton Piller v Manufacturing Processes [1976] CA

Ashton v Turner [1980] Ewbank J

B (A Child) v DPP (2000) (HL)

British Railways v Herrington [1972] HL

Bromley LBC v Greater London Council [1982] HL

C (a minor) v DPP [1995] HL

Campbell v MGN Limited [2004] HL

Caparo v Dickman [1990] HL

Central London Property v High Trees House [1947] KBD Denning J

Chadwick v British Railways [1967] QBD

Clegg, R v [1995] HL

Council of Civil Service Unions v Minister for the Civil Service [1984] HL

Donoghue v Stevenson [1932] HL

Doughty v Turner Manufacturing [1964] CA

Fairchild v Glenhaven [2002] HL

Fisher v Bell [1960] QBD

Gillick v West Norfolk & Wisbech HA [1985] HL

Hall v Simons (2000) HL

Hardie, R v [1984] CA

Harris, R v (1836)

Hill v Chief Constable of West Yorkshire [1988] HL

Howe, R v [1987] HL

John Munroe (Acrylics) Ltd v London Fire and Civil Defence authority [1997] CA

K, R v [2001] HL

Lynch, DPP for Northern Ireland v [1975] HL

Majewski, DPP v [1976] HL

Mareva v International Bulkcarriers [1980] CA

Marks & Spencer v One In A Million [1998] CA

McLoughlin v O'Brian [1982] HL

Morgans v Launchbury [1972] HL

National Westminster Bank v Spectrum Plus [2005] HL

Nettleship v Weston [1971] CA

O'Grady, R v [1987] CA

Pepper (Inspector of Taxes) v Hart [1993] HL

Powell v Kempton Park Racecourse (1899) HL

Practice Statement (Judicial Precedent) [1966] HL

Preddy, R v (1996)

R v R (rape - marital exemption) [1991] HL

Re A (Children) (2000) CA

Re Pinochet [1998] [1999] HL

Re Racal Communications Ltd [1980] HL

Registrar General (ex parte Smith), R v (1991) CA

Rodger & Rose, R v [1998]

Royal College of Nursing v DHSS [1981] HL

Savage, R v (1991)

Shaw v DPP [1961] HL

Smith v Hughes [1960] QBD

Smith, R v [1959] CMAC

Sweet v Parsley [1970] HL

 

A, R v (Complainant's sexual history) [2001] HL

[Statutory interpretation – Human Rights Act]
D committed rape but said V consented. D wanted to raise a three-week relationship between him and V to support this defence. The
Youth Justice and Criminal Evidence Act 1999 sec 34 restricts evidence or cross-examination on previous sexual behaviour

 

Held: Lord Steyn said s.3 of the Human Rights Act 1998 requires legislation to be interpreted "so far as it is possible" in a way compatible with Convention rights;

 

A declaration of incompatibility is a last resort. Therefore s.34 interpreted as including an implied provision that evidence or cross-examination essential to a fair trial under Art.6 of the Convention was not to be excluded.

 

R v Abbott [1976] PC (Trinidad )

[Statutory interpretation – judicial limits]
D a member of a commune killed V on the orders of the group leader.

 

Held: his plea of duress was dismissed as unavailable to a principal in the crime of murder.

 

Lord Salmon;

“Judges have no power to create new criminal offences nor, in their Lordships' opinion, for the reasons already stated, have they the power to invent a new defence to murder which is entirely contrary to fundamental legal doctrine, accepted for hundreds of years without question.  If a policy change of such a fundamental nature were to be made it could, in their Lordships' view, be made only by Parliament.”

Guilty

Airedale NHS Trust v Bland [1993] HL

[Statutory interpretation – applying principles – moral issues to be considered by Parliament]
Tony Bland seriously injured in the Hillsborough disaster, was being kept alive only by extensive medical care (not a life-support machine). He had survived for three years in persistent vegetative state (PVS). He continued to breathe normally, but was kept alive only by being fed through tubes. He had no chance of recovery; his doctors (with the support of his family) sought a declaration from the court that it would be lawful for them to discontinue treatment so that he might die peacefully.

 

Held: Treatment could properly be withdrawn in such circumstances, because the best interests of the patient did not involve him being kept alive at all costs.
 

Lord Browne-Wilkinson;

“The judges' function in this area of the law should be to apply the principles which society, through the democratic process, adopts, not to impose their standards on society. If Parliament fails to act, then  judge-made law will of necessity through a gradual and uncertain  process provide a legal answer to each new question as it arises. But in my judgment that is not the best way to proceed. The function of the court in these circumstances is to determine this  particular case in accordance with the existing law, and not seek to  develop new law laying down a new regimen …  it is for Parliament to address the wider problems which the case  raises and lay down principles of law generally applicable to the  withdrawal of life support systems.”   

Lord Browne-Wilkinson and Lord Mustill;

”It is imperative that the  moral, social and legal issues of the present case should be considered by Parliament”

In this case feeding him was treatment and that treatment would not cure him and therefore was not in his best interests.

It was lawful for D's doctors to stop feeding him artificially.

See also Frenchay Healthcare NHS Trust v S [1994] CA. Similar issues can arise in respect of the very elderly or in respect of babies born with very severe mental or physical handicaps, especially where major (and possibly repeated) surgery would be needed to keep them alive see Re J [1991].

 

It was lawful for D's doctors to stop feeding him artificially.  The court had no option but to make a decision one way or the other.

Also here

Alcock v Chief Constable of South Yorkshire [1991] HL

[Statutory interpretation – floodgates and policy]
A further action following the Hillsborough tragedy brought by those that helped at the scene.

 

Held: Rescuers should continue to qualify on policy grounds even though they were not in a close relationship with the victim. Friends and relatives raised the spectre of the "floodgates" argument, and the fear of opening up unlimited liability.

Lord Oliver openly used the word "policy" in explaining his decision.

 

Anisminic Ltd v Foreign Compensation Commission (1969) HL

[Judicial creativity - ouster clauses - response of the courts]
A statute said that "decisions" of the Commission should "not be called in question in any court".

 

{The commission was set up by the Foreign Compensation Act 1950. The commission decided that the claimant company had failed to establish a claim for compensation for the loss of its Egyptian assets following the Suez crisis of 1956.)

 

Held: Despite this clear and unambiguous provision the court preserved their jurisdiction, they claimed the decision was ultra vires, and hence void and no "decision" at all. The purported decision was described as a nullity.

 

Comment: In the light of the decision in Re Racal Communications Ltd, it is apparent that Anisminic Ltd would have had no remedy at all, either by way of appeal or judicial review, if the Foreign Compensation Act 1950 had provided for the ‘determination’ to he made by a High Court judge rather than by a statutory tribunal.

 

Also here

Anton Piller v Manufacturing Processes [1976] CA

 

Red Triangle indicating "Must Know" material

[Statutory interpretation – judicial creativity]

C believed D was about to infringe their copyright of a computer converter; they knew that if they started legal action D would destroy all incriminating documents.

C made an ex parte application for an order to enter the defendants’ premises in order to inspect, remove or make copies of documents belonging to the C.

 

Held: The court could make such an order, but should exercise it only in an extreme case where there was grave danger of property being smuggled away or of vital evidence being destroyed.

The order was not, however, a search warrant authorising C to enter a D’s premises against his will, but an order on D in personam to permit C’s entry or be in peril of proceedings for contempt of court.

 
In practice the claimant’s representatives enters the premises (under the supervision of an experienced solicitor).
 

This search order has nothing to do with the police.
 

Lord Denning MR:

"During the last 18 months the judges of the Chancery Division have been making orders of a kind not known before. They have some resemblance to search warrants. Under these orders the plaintiff and his solicitors are authorised to enter the defendant’s premises so as to inspect papers, provided the defendant gives permission.
Now this is the important point: the court orders the defendant to give them permission. The judges have been making these orders on ex parte applications without prior notice to the defendant.".
 

The order was made and subsequent orders became known as Anton Piller Orders, now called a Search Order.

Also here

 

Ashton v Turner [1980] Ewbank J

[Statutory interpretation – policy decision]
An escaping burglar was injured through the negligence of his getaway driver.  

 

Held: As a matter of policy the law will in some circumstances refuse to recognise the existence of a duty of care owed by one participant in crime to another.

 

B (A Child) v DPP (2000) (HL)

 

Whole case here

[Statutory interpretation - Burden of proof - Mens rea - Sexual offences]
D incited a child under 14 to commit an act of gross indecency.  The prosecution’s case was that Parliament had intended the offence to be one of strict liability.

 

Held:  that a defendant was entitled to be acquitted of the offence if he held an honest belief that the child in question was 14 or over.

 

Appeal allowed.

British Railways v Herrington [1972] HL

 

[Judicial precedent – HoL  - examples of departing]
C, 6 years old, was burned on an electric rail.  The railway was separated from a play area by a fence that was broken. The stationmaster knew the fence was in poor condition, and knew children often trespassed, but took no steps to correct this.

 

Held: Applying Lord Atkin’s “neighbour” principle; the occupier might not owe to the trespasser a common duty of care, but did have a duty to treat him with ordinary humanity.

 

Overruled/Departed: Addie v Dumbreck [1929] which held that an occupier of premises had no duty of care to a trespasser and it was the responsibility of the parents to protect their children.

"Departed" rather than "overruled" because the House would have decided Herrington the way it did regardless of the 1966 practice statement, they would have distinguished the previous case. Overruled (or, at least, modified) Addie v Dumbreck [1929]

 

In Addie, an occupier of premises was only liable to a trespassing child who was injured by the occupier intentionally or recklessly.

In Herrington, they propounded the test of 'common humanity’, which involves an investigation of whether the occupier has done all that a humane person would have done to protect the safety of the trespasser.

Parliament had passed the Occupier’s Liability Act 1957. The lords were unanimous in deciding that there could be liability to a trespasser. Unfortunately five judges reached that decision in different ways and the matter was referred to the Law Commission, and eventually the passing of the Occupier’s Liability Act 1984 that now governs the position of trespassers and certain other non-visitors.

 

Bromley LBC v Greater London Council [1982] HL

[Statutory interpretation – policy considerations]
The Greater London Council under Ken Livingston implemented an election promise by introducing a "Fares Fair" policy in which public transport fares were reduced by 25%. This was to be subsidised from the rates.
Bromley, a Conservative council sought certiorari to quash this decision, claiming that the GLC had acted ultra vires.

Held: The power to make grants to London Transport was meant to cover unavoidable losses, not to promote a social policy even though it had been approved by the majority of the electorate.

 

C (a minor) v DPP [1995] HL

[Judicial creativity – judicial cowardice]
A 12-year-old boy A was charged with interfering with a motor cycle

 

Held: The presumption of 10-14 doli incapax (mischievous discretion) had been discussed in official reports, a draft Bill produced by the Law Commission in 1985 had proposed its abolition, but a white paper in 1990 had indicated that the government had no intention of changing the law in this respect.

This presumption was ultimately abolished by the Crime and Disorder Act 1998.

Lord Lowry gave the following guidelines for judicial law-making:

  1. judges should beware of imposing a remedy where the solution to a problem is doubtful;

  2. they should be cautious about making changes if Parliament has rejected opportunities of dealing with a known problem or has legislated while leaving the problem untouched;

  3. they are more suited to dealing with purely legal problems than disputed matters of social policy;
    fundamental legal doctrines should not lightly be set aside; and

  4. judges should not change the law unless they can achieve finality and certainty.

 

Campbell v MGN Limited [2004] HL

 

Whole case here

[Judicial creativity – breach of confidence extended to include misuse of private information]
C, Naomi Campbell, was photographed coming out of a drug clinic. D published in the “Mirror” misleading information together with the photograph.

Held: In this country, unlike the United States of America, there is no cause of action for ‘invasion of privacy’. The common law or, more precisely, courts of equity have long afforded protection to the wrongful use of private information by means of the cause of action, which became known as breach of confidence. A breach of confidence is unconscionable conduct, akin to a breach of trust. The essence of the tort is better encapsulated now as misuse of private information.

Miss Campbell’s claim was on the basis of breach of confidence, that is, the wrongful publication by the ‘Mirror’ of private information. Detailed information about her treatment for drug addiction amounted to private information, which imported a duty of confidence. There was a balance to be struck between her right to private life Article 8 of the European Convention on Human Rights and Article 10 the right to freedom of information

Lord Hope;

"Despite the weight that must be given to the right to freedom of expression that the press needs if it is to play its role effectively, I would hold that there was here an infringement of Miss Campbell’s right to privacy that cannot be justified."

Lady Hale:

“Wainwright v Home Office [2003] … indicates that our law cannot, even if it wanted to, develop a general tort of invasion of privacy. But where existing remedies are available, the court not only can but must balance the competing Convention rights of the parties.”

C won.

Caparo v Dickman [1990] HL

 

[Statutory interpretation – incremental changes]
C bought shares in Fidelity plc with a view to taking it over, and bought more after seeing F's auditors' report. The shares fell in value; C sued the auditors for their negligence in preparing the report.

 

Held: the law should preferably develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only

“…to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise…”

 

Central London Property v High Trees House [1947] KBD Denning J

 

 

 

[Judicial creativity – judicial boldness]
D leased a block of flats in London from C in 1937. When war broke out, many flats were left empty as people were evacuated to escape bombings. C agreed to reduce the rent by half if D stayed. D paid the reduced rent until the end of the war, and C then claimed for the "arrears".

 

Held: Denning J "discovered" the equitable doctrine of promissory estoppel, and said that although C were once again entitled to the rent originally agreed after the war ended, they could not go back on their promise to accept a reduced rent for the earlier years.

 

When a party to a contract makes a promise to the other, which he knows will be acted on, that he will not enforce his strict legal rights; the equitable principle of promissory estoppel makes that promise binding on him until such time as he gives reasonable notice of his intention to resume those rights.

Denning J (obiter dicta) said that had Central London sued for the arrears for the years 1940-45, it would have failed.  It would have been estopped from going back on its promise [as set out in the 1940 agreement] to accept a reduction in rental, even though that promise had not been supported by any consideration from High Trees because to hold otherwise would have been unjust

Also here

 

Chadwick v British Railways [1967] QBD

[Judicial Creativity - policy matters]
D the railway board responsible for a major train accident caused by their negligence. C the wife of a volunteer who took part in rescue work suffered nervous shock and became psychoneurotic as a result of his experiences.

 

Held: Damages were recoverable for nervous shock even where the shock was not caused by fear for oneself or the safety of one's children and in the circumstances injury by shock was foreseeable.

 

D ought to have foreseen the existence of a rescuer and accordingly owed him a duty.

 

C won

Also here

R v Clegg [1995] HL

[Judicial Creativity – judicial restraint]
D fired several shots at a car whilst he was on check point duty in Northern Ireland. The car was approaching the checkpoint at speed and did not appear to be going to stop. One of the passengers was killed. Clegg was charged and convicted of murder.

 

It was argued that the House should make new law by creating a new qualified defence - available to a soldier or police officer acting in the course of his duty - of using excessive force in self-defence, or to prevent crime, or to effect a lawful arrest.  By doing so it would reduce murder in such cases to manslaughter.

 

Held: Lord Lloyd, whilst not averse to judicial law-making - citing R v R as a good example of it – said that he had no doubt that they should abstain from law-making in the instant case since the reduction of murder to manslaughter was essentially a matter for Parliament, and not the courts.

The issue of self defence (and therefore excessive force) did not strictly arise in this case as when the shot that killed the girl was fired, the vehicle in which she was travelling had passed Clegg. However, they did review the law on excessive force.

The Home Office released Clegg which sparked off several riots in Northern Ireland at the time.

 

D’s conviction was later quashed on different grounds.

Council of Civil Service Unions v Minister for the Civil Service [1984] HL

[Judicial Creativity – judicial restraint]
The government banned trade union membership for workers at GCHQ.  The unions challenged the legality of this action.

 

Held: The exercise of the royal prerogative is subject to judicial review.

It is the nature of the power rather than its source that determines its justiciability.

However, the requirements of national security outweighed those of natural justice, and so the unions lost the case.

 

Donoghue v Stevenson [1932] HL

Red triangle, important information

 

Whole case here

[Judicial Creativity]
Mrs Donoghue went to Minchella’s Wellmeadow Cafe in Paisley with a friend. The friend ordered ice cream over which part of a bottle of ginger beer was poured. When the remainder of the ginger beer was poured, it was found to contain a decomposed snail. Mrs Donoghue became ill through having consumed contaminated ginger beer.

 

Held:

“The rule that you are to love your neighbour become in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? Receives a restricted reply. You must take reasonable care to avoid acts or omissions, which you can reasonably foresee, would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”

C won.

Doughty v Turner Manufacturing [1964] CA

[Judicial Creativity – judicial caution]
C was badly burned when a workmate carelessly knocked a cement block into a bath of molten metal there was a violent and wholly unexpected chemical reaction. In Re Polemis [1921] the Court of Appeal had held that a person who performed a negligent act was liable for all its direct consequences, but in The Wagon Mound [1961] the Privy Council had disapproved this rule and had said liability existed only where the kind of damage was reasonably foreseeable.

 

Held: The court followed Wagon Mound. D was not liable for C's injuries: whether or not The Wagon Mound is binding on this court, said Harman LJ, we ought to treat it as the law.

 

Fairchild v Glenhaven [2002] HL

 

Whole case here

 

 

[Tort - negligence - causation – breach of duty causing or materially contributing to damage – whether C able to recover against 'either or both' employers]
Three conjoined appeals against an employer for damages for negligent exposure to asbestos dust which had caused a mesothelioma, but C could not show during which employment he had suffered the offending dust.


Held: C could succeed against either or both employers, and it was up to them to sort out who would pay what proportion of the award.

Where

  1. C  had been employed by more than one employer and,

  2. D had a duty of care to prevent dust inhalation and,

  3. D had been in breach of that duty and,

  4. C had contracted mesothelioma, and

  5. any other cause of mesothelioma could be ruled out but,

  6. C could not (because of the limits of human science) prove during which employment he had inhaled the dust....

...C was entitled to recover against both his employers.

 

That conclusion was consistent with principle, and with authority.

Where the conditions were satisfied, it was just and in accordance with common sense to treat the conduct of both employers in exposing the claimant to a risk to which he should not have been exposed as making a material contribution to the contracting by the claimant of a condition against which it was the duty of both employers to protect him.

 

Policy considerations weighed in favour of such a conclusion. It was a conclusion which followed even if one of the employers was not before the court.

 

It had not been suggested in argument that the claimant’s entitlement against either employer should be for any sum less than the full compensation to which he was entitled, although either of them could of course seek contribution against the other or against any other employer liable in respect of the same damage in the ordinary way.

 

C won
This decision was refined in barker v Corus [2006] HL which stated that
damages should be set in proportion to the amount of time a worker spent with a company.

Fisher v Bell [1960] QBD

 

Also here

^[Judicial Creativity – literal interpretation defeating Parliament’s intention – no account taken of policy]
D displayed a flick knife in a shop, contrary to the Prevention of Crimes Act.

Held: It is presumed Parliamentary draftsmen know technical legal language and so the common law expression was not altered. "Offer for sale" was to be taken literally, in accordance with its meaning in contract law, so the display of the weapon was no more than an invitation to treat.

 

Not guilty

Gillick v West Norfolk & Wisbech HA [1985] HL

[Judicial Creativity – judicial law making, where Parliament has not done so]
Mrs Gillick a Roman Catholic mother of five daughters sought a declaration that a doctor would be acting unlawfully if he gave contraceptive treatment for any of her daughters without the mother's consent.  It was argued on the one hand that teenage pregnancies would increase if the courts ruled that parental consent was necessary, on the other hand that the judges would be encouraging under-age sex if they did not.

Held:  By a majority of three to two. A child under 16 who can fully understand the implications of the proposed treatment (a "Gillick competent" child) can give her own consent to medical treatment.

(Since Parliament had not legislated, the courts had to make a decision one way or the other.)


Mrs Gillick lost

Also here

Hall v Simons (2000) HL

[Judicial Creativity – contemporary law making]
Point of law decided in three conjoined appeals concerning negligence by solicitors,

Held: Advocate's immunity from being sued abolished.

 

Rondel v Worsley [1967] and Saif Ali v Sydney Mitchell & Co [1980] overruled.
 

Lord Hoffman:

I do not say that Rondel v Worsley [1969]…was wrongly decided at the time. The world was different then. But, as Lord Reid said then, public policy is not immutable..”

 

R v Hardie [1984] CA

[Judicial Creativity – refining the ratio]
D started a fire in a friend's flat after taking valium (not prescribed for him).

 

Held: Caldwell distinguished because he did not have the mens rea, and considered that while intoxication cannot usually be pleaded as a defence to offences of recklessness, the rule will not generally apply to drugs that are merely soporific or sedative

 

Not guilty

R v Harris (1836)

[Judicial Creativity – literal interpretation]
D bit off V’s nose.

 

Held: this was not included (expressio unius est exclusio alterius) in "stab, cut or wound" which implied an instrument must be used.
 Lord Denning;

"We no longer construe Acts according to their literal meaning. We construe them according to their object and intent."

 

Hill v Chief Constable of West Yorkshire [1988] HL

[Judicial Creativity – policy decisions]
D the police force hunting the "Yorkshire Ripper" Peter Sutcliffe he murdered 13 women. The mother of his last victim sued the police for negligence in failing to catch him which lead to her daughter’s death.

Held: The police owed no duty of care towards Susan Hill to protect her from the Ripper.
There are public policy reasons for not allowing claims like these. If such claims were allowed, the police would be inhibited in the exercise of their professional judgement, and a vast amount of police time and money would be diverted from the fight against crime to the defending of civil cases.

C lost

R v Howe [1987] HL

[Judicial Creativity – use of Practice Statement by Lords]
D acting under duress, took part with others in two separate murders, and on a third occasion the intended victim escaped.

 

Held: Using the 1966 Practice Statement to depart from the decision in Lynch.

Duress is not available as a defence to murder either to a principal or accessory.  Morals, law and policy should deny a man the right to take an innocent life even at the price of his own.

Lord Hailsham;

”…the overriding objects of the criminal law must be to protect innocent lives and to set a standard of conduct which ordinary men and women are expected to observe if they are to avoid criminal responsibility…”

 

Guilty Lynch overruled

John Munroe (Acrylics) Ltd v London Fire and Civil Defence authority [1997] CA

[Judicial Creativity –choice of rules, relying on principle –preference for justice – decision by analogy]
D employed fire fighters who wrongly thought all the fires at C’s premises had been put out.  One of the fires flared up again, causing damage to C’s premises. C sued D and others, alleging negligence.

Held: D owed no duty of care to C. The considerations set out in Hill v Chief Constable are applicable as much to the fire brigade as to the police.  Imposing a duty of care would not improve the efficiency of the service but would lead to defensive fire fighting. Above all, the imposition of a duty of care in this situation would lead to a flood of claims, since many fires were created by Acts of God or acts of criminals and lunatics, leaving only the fire service to be sued. The judge at first instance
Rougier J was not referred to an existing case on the point and had to use the police as an analogy

Stuart-Smith LJ said the fire brigade was not under any common law duty to respond to a call, was not liable if it failed to do so, or did not attend promptly, or was not effective.

C lost.

R v K [2001] HL

[Judicial Creativity – presumption of mens rea in crime – Parliament to express otherwise]
D aged 26 indecently assaulted a girl aged 14. D believed her to be 16 and had no reason to disbelieve her when she told him she was over 16.

Held: The prosecution had to prove absence of genuine belief by the defendant that the girl concerned was 16 or over.

Lord Bingham said that there was an overriding presumption of statutory interpretation that mens rea was an essential ingredient of all statutory crimes unless Parliament indicated otherwise by express words or by necessary implication.

There was nothing in the language of the Act which justified, as a matter of necessary implication, the conclusion that Parliament must have intended to exclude mens rea in this offence.

If the effect of the presumption was read into this offence, with reference to belief as to age, no absurdity resulted and an otherwise glaring anomaly would be avoided.

 

Not Guilty

Lynch, DPP for Northern Ireland v [1975] HL

 

[Judicial Creativity  - judicial boldness]
D, an accomplice to murder had been threatened by the IRA and had driven them to and from the scene of their crime.

 

Held: The defence of duress was available in such a case it was.

Lord Simon LC (dissenting – judicial cowardice)

“I am all for recognising frankly that judges do make law. And I am all for judges exercising this responsibility boldly at the proper time and place - that is, where they can feel confident of having in mind, and correctly weighed, all the implications of their decision, and where matters of social policy are not involved which the collective wisdom of Parliament is better suited to resolve I can hardly conceive of circumstances less suitable than the instant for five members of an appellate committee of your Lordships' House to arrogate to ourselves so momentous a law-making initiative.”

DPP v Majewski, [1976] HL

 

Red triangle indicating important material

[Judicial Creativity – policy decisions]
D assaulted 3 people in a fight in pub then one PC who attend the scene then 2 more officers at the police station.

 

His defence was that he had been drinking and taken drugs and had no intention to commit the acts which he did.

 

In determining whether a defendant intended certain consequences the court must have regard to all the evidence (Criminal Justice Act 1967 s.8) and must not infer such an intention merely because the consequences were likely.

 

Held: Sec.8 is a rule of evidence not substantive law and is irrelevant to cases such as this.
Lord Simon;

“One of the prime purposes of the criminal law…is the protection  ... of persons who are pursuing their lawful lives … To [apply Sec 8] would leave the citizen legally unprotected from unprovoked violence where such violence was the consequence of drink or drugs having obliterated the capacity of the perpetrator to know what he was doing or what were its consequences.”

Comment: The decision is based on policy considerations ignoring the principle that criminal statutes are to be construed narrowly.

Also here

Mareva v International Bulkcarriers [1980] CA

[Judicial Creativity – inherent jurisdiction, derived from the Royal Prerogative]
C intended to claim unpaid hire charges from a foreign-based company, but feared they would take all their assets abroad to evade judgment.

 

Held: An ex parte (without notice) injunction against removing any assets from D's account was granted.

Hence the expression a "Mareva injunction", now a "Freezing Order"

 

Marks & Spencer v One In A Million [1998] CA

[Judicial Creativity – judicial responsibility when Parliament has not or will not legislate]
D offered to sell registered web addresses including marksandspencer.com. C claimed the addresses were theirs by right and should be handed over at only a nominal price.

Held: Even though Parliament had not legislated in the matter of domain names an order was made to transfer the address to C.

 

Since D could have no legitimate use for other companies' registered trade names, they should not have registered those addresses in the first place. [His decision was subsequently affirmed on appeal.]

C won

McLoughlin v O'Brian [1982] HL

[Judicial Creativity – principle –v- policy]
C visited her family in hospital an hour after a road traffic accident. She suffered psychiatric illness from the shock of seeing one daughter dead and her husband and two other children seriously injured.

 

Held; Principle not policy keeps the common law flexible and consistent.

 

Morgans v Launchbury [1972] HL

[Statutory interpretation – judicial restraint – matters for Parliament]
D owned a car that was being driven by a friend of her husband.  There was a traffic accident. C was injured and sued the owner, claiming she was vicariously liable for the negligence of the driver. C claimed it was a "family car" and that the husband should be regarded as joint owner with the wife. The idea was that as the owner of the family car was insured, she should bear the loss.

 

Held:  The "family car" concept was not recognised.
Lord Pearson;
such an innovation, whether or not it was desirable, was not suitable to be introduced by judicial decision. It raised important questions of policy, which needed to be considered by Parliament, using the resources at their command for making wide enquiries and gathering evidence and opinion.

Lord Wilberforce said that to declare from that date a new and more extensive principle of liability would affect many people's assumed legal rights.

“Any new direction, and it may be one of many alternatives, must be set by Parliament”

 

C lost

National Westminster Bank v Spectrum Plus [2005] HL

 

 

 

Red triangle indicating important material

 

 

Whole case here

[Precedent – prospective overruling is lawful]
National Westminster Bank was owed money by Spectrum Plus, a paint company. Other creditors such as the Inland Revenue, Customs & Excise and Spectrum employees were also owed money. Spectrum became insolvent (went bust). Nat West sued to recover their money ahead of the Revenue.

Held: By seven Law Lords:-
Banks that lent money to companies on certain terms have lost their right to a place at the front of the queue for repayment when the companies go bust. Nat West’s charge counted as a “floating”, rather than a “fixed” charge, meaning it had to wait in line behind a queue of government creditors.

The law lords declined to overrule prospectively Siebe Gorman (1979) that is they declined to make their decision effective only in the future.

Siebe Gorman & Co Ltd v Barclays bank Ltd [1979] Ch overruled.
 

Nat West Bank lost

 

Comment: This judgment hits 10 on the scale of important decisions in recent years. The whole basis of precedent has been potentially altered. All sides in the debate about judicial creativity and the judiciary’s role in law making will now to be re-argue their case.

Nettleship v Weston [1971] CA

 

Whole case here

[Judicial Creativity - decisions based on policy]
D a learner driver went out for her first lesson, supervised by a friend C. D crashed the car into a lamppost, and C was injured.

 

Held: Even learner drivers are to be judged against the standard of the reasonably competent driver. The fact that a particular driver is inexperienced and incompetent does not excuse his falling short of this standard.  It matters not that a learner driver is doing her incompetent best.
Lord
Denning applied policy considerations in deciding this case because, he said, the injured person can recover damages from the insurance policy; however the insured party must be at fault first.

C won damages subject to a deduction for contributory negligence.

Also here

R v O'Grady [1987] CA

 

Red triangle indicating important information

[Judicial Creativity – principle (self protection) gives way to policy (society has to be protected)]
D killed his friend M supposedly in self-defence during a fight.  They had spent all day drinking, and consumed about eight flagons of cider between them.

D overestimated the threat to him, and had used excessive force in his own defence.

 

Convicted by the jury of manslaughter

 

Held:  On the one hand D should be able to do what he honestly believed necessary to protect himself, but on the other the innocent victim should be protected from injury or death by another's drunken mistake.

Reason recoiled from the conclusion that D should be able to “leave the court without a stain on his character” after a drunken killing.

 

This would clearly be unjust, so it must remain the case that a defendant cannot rely on self-defence where it results from a mistake caused by his own intoxication.

 

Lord Lane (obiter) for public policy reasons, intoxicated mistakes should not be available even as a defence to specific intent crimes such as murder.

Guilty manslaughter

Also here

Pepper (Inspector of Taxes) v Hart [1993] HL

[Judicial Creativity – judicial pragmatism – applying the will of Parliament]
D a schoolteacher benefited from reduced fees for his children. The rate of tax payable on these fees was to be found in Parliamentary discussions recorded in Hansard.  C was the inspector of taxes.

 

Held; Statute law consists of the Parliament’s words. If they are ambiguous or obscure, or the literal meaning leads to an absurdity, Judges may use Hansard to discover how the legislation was constructed.  This is so only where the record discloses the mischief aimed at or the legislative intention behind the obscure or ambiguous words.
 
No statement other than that of the Minister or other promoter of the Bill is likely to satisfy that criterion. In this case the very question to be resolved was in fact considered by Parliament when the Bill was under discussion, it is reasonable to look at what was said.

Lord Reid;

"To apply the words literally is to defeat the obvious intent of the legislature. To achieve the intent and produce a reasonable result we must do some violence to the words"

Lord Browne-Wilkinson;

"The purposive approach to construction now adopted by the courts in order to give effect to the true intentions of the legislature".

Lord Griffiths;

"The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted."

 

Using the Practice Statement the HoL departed from its own decisions in Davis v Johnson [1979].

 

Powell v Kempton Park Racecourse (1899) HL

[Statutory interpretation – application of judicial rules]
D operated betting at what is known as Tattersall’s Ring which is outdoors.

 

Held: A clause referring to a "house, office, room or other place" excluded a ring at a racecourse, which it out of doors.

Not guilty

Practice Statement (Judicial Precedent) [1966] HL

[Statutory interpretation – need for flexibility while recognising the need for certainty – example of judicial law making]

"Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.

 

Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.

 

In this connection, they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property, and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.

 

This announcement is not intended to affect the use of precedent elsewhere than in this House."

R v Preddy  (1996) HL

 

Red triangle indicating important material

Whole case here

[Judicial Creativity – need for Parliament to legislate in cases where acts of D are novel]
D committed a fraud in a way that could never have been anticipated by the legislators.  Lead to the Theft Amendment Act 1996.

 

Not guilty

Also here

 

R v R (rape - marital exemption) [1991] HL

[Judicial Creativity – contemporary factors to consider – stare decisis gives way to other factors]
D raped his wife.  They lived apart and he forced his way into her parents' house where she was living.

 

Held: Sir Matthew Hale, a seventeenth century witch-hunting judge, stated-in a hook not even a judgment that marriage entails irrevocable consent, and one judge after another has maintained the legal fiction, keeping wives in legal sexual slavery. Lord Lane CJ;
 

The court must choose between the "literal solution": that the 1976 Act by making unlawful sexual intercourse a necessary element of rape, had confined rape to sexual intercourse "outside the bounds of matrimony"; The "compromise solution,'' that the word is to be construed in such a way as to leave intact the exceptions to the husband's immunity which have been engrafted onto Hale CJ's proposition from R v Clarke onwards and is also to be construed so as to allow further exceptions as the occasion may arise" and the "radical solution" that Hale's opinion was not law. In the view of the court the "radical solution" was preferable:

"This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it."

 

To hold "unlawfully'' to mean "outside marriage" … would be to give it a meaning peculiar to the subsection, and "if the mind of the draftsman had been directed to the existence of the exceptions he would surely have dealt with them specifically and not in such an oblique fashion." The word "unlawfully" in the definition of rape was surplusage, for forcible sexual intercourse was invariably unlawful.

 

Hale's proposition reflected the state of affairs at the time it was enunciated, but since then the status of women, particularly of married women, has changed out of all recognition.

 

The question is whether the court should step aside to leave the matter to the Parliamentary process. This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it.

The principle that a woman's autonomy over her own body was weighed against the principle of stare decisis for more than two hundred years.

D guilty

Also here

Re A (Children) (2000) CA

[Mens rea - Murder – intention can be inferred]
"Conjoined twin" Jodie and Mary needed to be separated to save the life of one the twin, but causing the immediate death of the other.

 

Held: s.1 (1) of the Children Act 1989 requires that the child's welfare be the paramount consideration. Jodie's welfare required that the twins be separated; Mary's welfare required that they should not.

There could be no doubt that in English law, a surgeon who performed the separation knowing that it would inevitably hasten Mary's death would be held to have caused that death and to have done so intentionally, even though that would not have been his primary motive. So far as the law was concerned, the doctrine of double effect did not apply here because Mary's death would not be a side-effect of treatment that was in her best interests overall. In the instant case the life to be taken was that of a person who (although morally blameless) was slowly killing her sister who was entitled to defend herself.

 

Declaration approved, operation carried out Mary died Jodie is living a normal life at the time of writing.

Also here.

Re Pinochet [1998] [1999] HL

[Judicial Creativity – no existing rules – judicial discretion required]
During extradition hearings it emerged that Lord Hoffmann, had been a non-executive director of Amnesty International. It had always been thought that there is no appeal from House of Lords, but in this case it was allowed.

 

Lord Browne-Wilkinson said a fundamental principle is that a man must not be a judge in his own cause. Lord Hoffman was closely associated with one of the parties and he was disqualified from hearing the case whether or not there was any actual bias or appearance of bias.

No extradition allowed due to Pinochet’s illness.

Re Racal Communications Ltd [1980] HL

[Judicial creativity - ouster clauses - limits - bound by statute in some cases]

A High Court judge had refused to make an order under Companies Act authorising the inspection of a company’s books or papers.

 

The Act said that the decision of the High Court judge ‘is not appealable’.

 

Notwithstanding these clear words, the Director of Public Prosecutions, who had applied for the order, appealed.

 

The Court of Appeal assumed jurisdiction, reversed the judge’s decision and made the order sought. The reason given was that the judge had erred in law and the words, ‘is not appealable’, only excluded an appeal on the facts and not on the law.
 

Held: The words, ‘is not appealable’, mean exactly what they say. There was no right of appeal under the Act from the High Court judges decision either on the facts or on the law. Therefore, the Court of Appeal had no jurisdiction the Act to hear the appeal.


Comment: One of the effects of Re Racal Communications Ltd is to make it clear that mistakes of law made by High Court judges can only he corrected by an appeal to an appellate court and that they cannot be corrected at all if the statute provides that the judge’s decision shall not he appealable.
 

R v Registrar General (ex parte Smith) (1991) CA

[Judicial Creativity – Parliament’s words not applied by the courts]
Smith was refused a copy of his birth certificate because he was likely to murder his mother.

”Clearly, in this case, it would be absurd for a court to insist on implementing the clear words used by Parliament without having any thought to the consequences.”

 

R v Rodger & Rose [1998]

[Judicial Creativity – policy considerations]
D’s claimed that they had been forced to escape from prison because otherwise they would have been driven to commit suicide as a result of the extreme depression they were suffering.  

 

Held: for the defence to apply, the "circumstances" had to be external to the actual offender.

This decision is a policy decision based on the facts indicating the courts acting on a case by case basis.

 

Royal College of Nursing v DHSS [1981] HL

[Judicial Creativity – choice of rules of interpretation]
Section 1(1) of the Abortion Act 1967 states that ‘a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner…’

Terminations, which involve nurses playing a substantial role, are acceptable provided that a registered medical practitioner accepts responsibility.  Therefore, a doctor need not be present at a termination.  

It appears that their Lordships had not engaged in interpretation but rewriting legislation or as Lord Edmund-Davies put it, ‘redrafting with avengance’, this may have been to protect a large number of nurses who otherwise would have been performing illegal abortions since 1972.

The literal and mischief rules appeared not appropriate, the purposive approach did. Abortion Act is now given a broad interpretation rather than the narrow literal interpretation favoured by the minority.

 

R v Savage (1991)

 

[Judicial Creativity – antiquated words updated]
 ‘Malicious’ in s20 interpreted to mean D intended harm or at least saw a risk of it (subjective recklessness)

 

Shaw v DPP [1961] HL

[Judicial Creativity – only policy considered]
D conspired to corrupt public morals by publishing a booklet containing details prostitutes, and their services.  This was hitherto an unused common law offence.

Held; Lord Tucker cited precedents for the offence.
Viscount Simonds;

”In the sphere of criminal law, I entertain no doubt that there remains in the courts of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the state, and that it is their duty to guard it against attacks which may be the more insidious because they are novel and unprepared for.”

Lord Reid (dissenting) said there were widely differing opinions as to how far the law should punish immoral acts done in private,

“Some think that the law already goes too far, some that it does not go far enough. Parliament is the proper place, and I am firmly of opinion the only proper place, to settle that.”

Guilty

Smith v Hughes [1960] QBD

[Judicial Creativity – mischief rule as policy]
D a prostitute was one of six who solicited from inside a building to the street. She sat inside tapping on the window.  Others had been on a balcony above the street, others at windows open and closed, either tapping or calling to men.

 

Held: A private building was held to be a "street or public place" for the purposes of the Act to avoid the mischief of allowing people to walk along the street without being accosted.

Lord Parker CJ said this was the mischief the Act was intended to prevent - everybody knows this was an Act intended to enable people to walk along the streets without being molested or solicited by prostitutes - and if D could be clearly seen from the street that was sufficient.

 

Guilty of soliciting "in a street or public place" contrary to s.1 (1) of the Street Offences Act 1959.

R v Smith [1959] CMAC

[Judicial Creativity – principle and policy]
D stabbed V with a bayonet during a fight in barracks. V's friend took him to the first aid post, but on the way, he dropped V twice. At the first aid post the medical officer was busy and took some time to get to V who died about two hours after the stabbing.  Had he been given proper treatment he would probably have recovered.

 

Held: The treatment he was given was thoroughly bad and might well have affected his chances of recovery, but medical treatment correct or not does not break the chain of causation. If at the time of death the original wound is still an operating cause and a substantial cause, then death can be said to be a result of the wound albeit that some other cause is also operating.

 

Only when the second cause of death is so overwhelming as to make the original wound merely part of the history can it be said that death does not flow from the wound.

R v Jordan, was distinguished. Only when the second cause of death is so overwhelming as to make the original wound merely part of the history can it be said that death does not flow from the wound.

 

Guilty

Sweet v Parsley [1970] HL

[Judicial Creativity – wishes of Parliament inferred]
D, a school teacher let rooms in farm house that were used for smoking cannabis. D only visited occasionally to collect the rent.  D had no knowledge of the use of cannabis.

 

Held: not strict liability offence, unless created by parliament.

Lord Diplock;

The courts will not easily ‘infer an intention of Parliament to create offences for which an honest and reasonable mistake was no excuse’.
and

. . . had the significance of Tolson been appreciated here, as it was in the High Court of Australia, our courts, too, would have been less ready to infer an intention of Parliament to create offences for which an honest and reasonable mistake was no excuse.”

Diplock's dictum referring to 'the absence of a belief, held honestly and upon reasonable grounds in the existence of facts which if true would make the act innocent' had in future to be read as though the reference to reasonable grounds were omitted.

 

Lord Reid noted in cases where Parliament has not made it clear that strict liability is intended, the courts, in construing criminal legislation, start from the presumption that Parliament did not intend to punish a blameless individual and therefore that words importing mens rea must be read into the statute. Lord Reid also recognised, however, that strict liability is often applied to a class of quasi-criminal offences, those referred to by Wright J in Sherras v De Rutzen [1895] as acts which are not criminal in the real sense but which are prohibited, by a penalty, in the public interest. The question is, within this broad context, whether the danger to be guarded against is of such importance that strict liability is required.

 

Not guilty

 

 

© 2000-2008 M Souper  Copyright reserved | disclaimer

 Law Weblog | Contact us |

Please visit the FREE Hunger Site