John AustinPositive law comes from commands issued by a sovereign, backed up by sanctions, and followed by those in obedience. This is legal positivism. Positive laws are laws ‘properly so called’.
H.L.A HartLaw is a system of social rules determined by conformity with a rule of recognition.
H.L.A Hart v AustinDisagrees with Austin that laws are commands, seeing the rule as a standard of behaviour rather than in fear of sanction (‘the internal aspect of rules’)
FullerA proponent of natural law, believes law can only be determined from a moral basis
American Legal RealismThere is a difference between law in books and law in actions
John Griffith“Judges are part of the machinery of authority”, Judges were from a very narrow socio-economic and political background
Sally Engle MerryThe law, and therefore the court, sees many moral issues, that while important to the claimant, as unimportant or unenforceable under law.
Lord Reid on Intention“We often say that we are looking for the intention of parliament, but that is not quite accurate. We are seeking the meaning of the words which parliament used.”
Plain Meaning Rule CaseNottinghamshire CC v SoS for the Environment
Plain Meaning Rule Case Details"HoL found that the Local Government Finance Act 1982 would only apply if the word ""applicable"" had the meaning ""to be applied"" rather than ""capable of being applied"""
Golden Rule CaseAdler v George
Golden Rule Case DetailsQBD interpreted s 3 as if it read ‘on or in the vicinity of’. Per Parker CJ at 10: ‘It would be absurd if an indictable offence was … created when the obstruction took place outside the precincts of the station, albeit in the vicinity, and no offence at all was created if the obstruction occurred on the station itself.’
Courts remedy these absurdities only where Parliament's intention is obvious caseQuintavalle
Courts remedy these absurdities only where Parliament's intention is obvious case detailsThe Human Fertilization and Embryology Act 1990 made it legal to create embryos through the use of fertilized eggs. A new technology was developed that allowed the creation of embryos without fertilized eggs. On the plain meaning of the act this was not allowed. HoL decided that the statute could be applied by ignoring references to fertilized eggs as parliament obviously intended for the creation of embryos by this means as well, it just didn't exist when the legislation was written.
Mischief RuleUsed when a statue has multiple credible meanings
Heydon's Case 1584When language is ambiguous ask: What was the mischief the statute was designed to remedy?
How to find mischiefAristotle suggested that the court should imagine the legislature had been reassembled to advise the court, would it want the language revised or updated?
Pepper v Hart 1993Set a precedent that parliamentary proceedings could be used in court The finance minister's statement on how he intended schoolmasters (like the defendant in this case) to pay the lower rate of tax, and so the court sided with the defence.
Hart Controversies&nbsp;Minister's statements don't reflect the will of the whole of parliament.&nbsp;<div><br></div><div>A court cannot turn down a party's request to look at parliament's record.&nbsp;</div><div>This is a fishing expedition, but courts cannot refuse this it risks 'prejudging' the case.&nbsp;</div><div><br></div><div>Citizens understand the law as the statutes say, not as what was said in parliament.&nbsp;</div><div><br></div><div>Lawyers focus too much on the debates and not the statutory language.</div>
Reading DownS.3 HRA 1998
"Legislation said that unmarried heterosexual couples who had been living with each other gained survivorship rights upon their partner's death. The court, in order to include homosexual couples (and align with A. 14 &amp; 8) read the legislation to say ""as if they were... wife or husband""."Ghaidan v Godin Mendoza
Fuller's exploration of different methodsThe Case of the Speluncean Explorers
InterpolationReplacing statutes with court's own reading
Super Dicta CaseIvey v Genting
Ignoring Dicta in IveyDPP v Patterson
Using Dicta in IveyGMC v Krishnan
Dicta of the SC can overrule ratio from the CA as it is direction from the SC to lower courts- This is specific to when the SC has gone out of their way to make a comment on a specific area of lawBarton
Only legislation could overrule HoLLondon Tramways v London CC
Allows for HoL to depart from its decisions if not doing so meant perpetuating a legal errorPractice Statement 1966
Example of HoL distinguishing&nbsp;even when the facts were not materially different in order to not follow precedentByrne v Heller, unconvincingly distinguished from unpopular Derry v Peek
Ghaidan v Godin Mendoza DissentLord Millett dissented and said that this crossed into law making. But this would lead to an eviction order and a declaration of incompatibility.
Prospective overrulingFights distinguishing becoming retrospective law, new precedent applies for every future case
Looking at international precedent and convergeIus Gentium
Lord Bingham, Fairchild v Glenhaven“If a decision is given in a country which offends one’s basic sense of justice, and if consideration of international sources suggests that a different and more acceptable decision would be given in most other jurisdictions, … this must prompt anxious review of the decision in question”
Sir Philip SalesFour principles of common law: -Reasonable predictability -Discipline for the courts in exercising power -Sensitivity to adjust the law to specific cases -Ability to develop the law over time
consistency and keeping the law reflecting society are inconsistent goalsLord Reid
the law is based upon reason built by observation and experienceSir Edward Coke
common law is a taught tradition of experience developed by reasonRoscoe Pound
common law has become a sub-system within society and therefore doesn't reflect ordinary moral reasoningNicholas Luhmann
impossible for the law to foresee nuance and moral aspects of a given sittuationAristotle
the law is nearly always appropriate for the given caseLord Reid
social propositions are taken into account when courts determine rulesMelvin Eisenberg
precedent can lead judges to lose sight of deeper legal principlesDr Johnson
the value of precedent simultaneously creates constraint and discretion, allowing the respect of the past without repeating the past's mistakesNeil Duxbury
Statute has 2 effects on Common LawSignals to the courts law should be developed in certain areas, Blocks the development of common law
What's dicta and what's ratio caseR (Youngsam) v The Parole Board
R (Youngsam) v The Parole Board Reasoning&nbsp;"""In looking for the ratio decidendi of a case, the starting point is always the rulings and reasons given in the judgment(s) to justify the court's decision, read in the light of the facts of the case and the issues that arose."" Where there is a broad decision ""the search for the ratio will also involve an evaluation of the strength and persuasiveness of the reasons expressed in the judgment"" 9 factors!"
Article 6, ECHR 1953Right to Due Process
Lord Mance in Kennedymade clear the right to due process did not originate with HRA 1998
Trials&nbsp;Educates us about legal systemBentham
Trials are a&nbsp;proto-democratic siteResnik
Trials&nbsp;Articulates public values and prompts discussionFiss
Trials&nbsp;Symbolises order,authority, powerRock
Trials also symbolise coercionCarlen
Mnookin and Kornhauser"""bargain in the shadow of the law"""
litigotiationdescribe how the shadow impacts on negotiation
"""On the contemporary American legal scene the negotiation of disputes is not an alternative to litigation. It is only a slight exaggeration to say that it is litigation. There are not two distinct processes, negotiation and litigation; there is a single process of disputing in the vicinity of official tribunals that me might call LITITGOTIATION, that is the strategic pursuit of settlement through mobilising the court process... adjudication remains a compelling presence even when it does not occur."""Galanter
Access to Justice, Final Report 1996"""It became increasingly obvious... that the civil justice system was failing most conspicuously to meet the needs of litigants"""
Access to Justice, Final Report 1996 Core PrinciplesAvoid litigation- Reduce adversarial form- Less complex litigation- Shorter and more certain time scale- Reduce cost of litigation, make it more proportionate to value and complexity- Make judges more effective case managers
Vanishing Precedent ReasonsIncrease in SC refusals of cases- Less SC cases overall, reduction in precedent?- Lack of refreshed precedent with decrease of trials- Most cases do not involve a point of law- Litigants are not always interested in precedent- Lawyers are ethically bound to agree to settlement if in client's best interest- Precedent setting is expensive and uncertain- Who should bear the cost of developing the common law?
The Dock on TrialRossner et. al
The Dock on Trial Conclusion"""jurors whose assessment of the evidence strength is neither very strong nor very weak, they may turn to other cues (such as whether the accused is in a dock) to assist their decision""&nbsp;<div><br></div><div>""This study has confirmed the view of most judges who have opined on the matter that the dock is potentially prejudicial and should be abandoned. Problem-solving courts, Indigenous courts, and certain restorative justice practices (such as family conferencing and sentencing circles) all recognise the importance of the design and choreography of the process.""</div>"
the dock could be done away with, noting that it is ‘out of date and incompatible with the presumption that the accused is innocent until he is proved guiltyIreland, the 1966 Committee on Court Practice and Procedure
US Supreme Court in 1976 ruling on constitutional groundsany form of constraint – prison clothing was the immediate issue in this case – could be seen as a ‘brand of incarceration’ and could undermine the presumption of innocence
ECHR Svinarenko and Slyadnev v RussiaCaged docks are 'degrading' in violation of Article 3, judges notes that even glass docks could raise procedural fairness questions under Art 6
"""In this sense, a trial is a succession of systematic attempts to expose testimony and testifiers."" +&nbsp;""Conflict is carefully administered... It can persist safely because it is neutralized by the very organization and fabric of the court."""WITNESSES AND SPACE IN A CROWN COURT- Rock
No of solicitors150,000 (0.6% of firms employ 25% of solicitors)
No of Barristers17,000
Female QCs16.8% QCs female
% of BAME Barristers19%
% of BAME QCs8.8%
Proportional BAME discrepancies at the barAsian= 7.5% v 5.6% of the population, Black 3.2% v 3.4% of population
% Solicitors in firms female49%
% solicitors in firms BAME21%
% of BAME solicitors are Asian66%
BAME Solicitor Growth243.7% between 1996 and 2006 as solicitors
Women Solicitor Growth10x since 1984
Lord Neubergercombination of recruitment from the Bar and a lack of strategy has resulted in a judiciary that is ‘male, white, educated at public school, and from the upper middle and middle classes’.
Crispin Passmore"""diversity quickly evaporates in the upper echelons"""
Liz Truss“Currently only one in seven of QCs and one in three of partners in law firms are women. Fewer that one in 10 judges comes from ethnic minorities. Only a quarter went to state School. This is modern Britain – we can do better than this”
"""persistent structural inequalities"""Diversity in the legal profession report
The Lammy Review (2017)A fundamental mistrust of the CJS by BAME communities id the lack of diversity among those who wield power within it
The Lammy Review (2017) BAME Stats20% of defendants BAME 11% of magistrates BAME
Baroness Neuberger: Advisory Panel on judicial diversity.Opposed quotas <br>Encouraged outreach work <br>Law firms should encourage part-time judicial service Induction programmes <br>Assumption that flexible working is possible
JAC Stat Dutya) appoint on merit and b) “to encourage diversity in the range of persons available for selection for appointments”.
Crime and Courts Act 2013Applies 'tipping point' under section 159 of the Equality Act 2010<br>Statutory duty for LC and LCJ to encourage diversity<br>
Judicial Diversity ForumMembers from across legal profession to challenge structural barriers to diverse judiciary
First woman law graduate (UCL)1888
First female solicitor admitted1920
First female barrister admitted1922
Numbers of women entering law degree programmesoutnumbered men by 2:1 in 2018
Lady Hale“there will inevitably be six vacancies on the supreme court between September 2016 and December 2018. If we do not manage to achieve a much more diverse court in the process of filling them, we ought to be ashamed of ourselves.”
Sumption"suggested it could take 50 years to achieve gender equality within the senior judiciary, arguing that in historical terms this was “a very short time"""
quasi-moral criminal lawmale-in-se
<div>disproportionate unwillingness to plead guilty from BAME because they trust the system less - leads to disproportionately high sentencing for BAME</div>Lammy Review
English Riots of 2011 Origin"<ul style=""""><li style="""">Mark Duggan shot and killed by police in August 2011 -&gt; operations planned as part of an investigation in gang crimes in Tottenham -&gt; January 2014 a jury found he was lawfully killed by the police&nbsp;-&gt;&nbsp;Protest held in 6th August which gradually became violent -&gt; many riots in London and spread to rest of England within days<br></li></ul>"
English Riots of 2011 PunishmentMore than 90% of cases sentenced at crown court resulted in jail terms (average rate is 46%) -&gt; 44.6% of rioters sentenced at Magistrates’ courts sent to prison (average is 12.3%) -&gt; MCs delivered sentences about 25% longer than average -&gt; of 1519 convicted, 41% were white, 39% black, and 12% mixed -&gt; majority were poor and with poor education
English Riots of 2011 Highlighted Sentences<div>18 y-o given 33 month term for inciting riot via Facebook -&gt; 22 y-o given 16 months for stealing ice cream</div>
Crispin Blunt, former under-SoS for Prisons and Youth Justice<div>‘The courts, judges and the probation and prison services have worked hard to make sure that those who attacked their own communities during the public disorder last August have faced justice quickly.’</div>‘They played a key part in stopping the riots from spreading further, by delivering swift and firm justice, and statistics make clear that the disgraceful behaviour innocent communities endured last summer is wholly intolerable’
Hobbes<div>People sign away their freedom to be gov by central authority and any threat to this central authority becomes lawlessness and anarchy</div>
Tim Newbern and The Guardian Study (2011)<div>Widespread frustration and anger with police (85% said it was a very important factor)</div><div>At the heart of this was a sense of lack of respect and perceived discriminatory treatment (stop and search)</div><div>Only 51% agreed they felt ‘part of wider British society’ v 92% from the population as a whole</div>
<div>Widespread dissatisfaction with the treatment of and outcomes for BAME individuals in the criminal justice system - particularly:</div><div>Police stop and search</div><div>Justification from police is that certain people behave suspiciously within certain groups</div><div>BUT S&amp;S is inefficacious - only 10% of cases stops to an arrest</div><div>Aggressive prosecution</div><div>Excessive use of imprisonment</div><div>Conclusion: overt racial prejudice in the CJS -&gt; problems of covert and unconscious or implicit bias are becoming more apparent -&gt; widespread racial disproportionality</div>Lammy Review (2017)
Accelerating resort to passage of criminal legislation as a regulatory tool, particularly since 1980Husak
<div>Crime goes up in 1980s and peaks in 1990s but is falling since then...</div><div>BUT imprisonment rates have been rising since the 1940s - 30,000 in 1970 to 90,000 in 2010</div>
Media coverage of crime<div>473% uptick in homicide reporting by the media but 32% drop in actual homicides</div>
Ipsos Mori crime survey<div>over 50% agreed with the statement ‘crime is the most important issue facing us today’ in 2008 but in 2016 only 8% agreed</div>
<div>there was a consensus on criminal justice in the 20th century - ‘penal welfarism’ which consisted of:</div><div>(i) deterrence a goal of punishment but reform and rehabilitation should play a role - intro of probation, community orders, alternatives to imprisonment</div><div>(ii) crime and criminal justice policy not a partisan issue - bipartisan consensus on policing, prisons, and punishment)</div><div>(iii) crime not seen as pressing issue to the general public</div><div>(iv) large acceptance of experts (CSs, psychologists, researchers, etc) in the field by the general public</div><div>(v) criminal justice reflected broader principles of a society concerned with inclusion and equality</div>Garland
1970s<div>Parties began to blame each other for rise in crime, Thatcher first politician to use law and order as major element of election strategy (became politicised), Promises ‘ring of steel’ against lawlessness (protestors, union activists, criminals), Promises increase in police power and resources (police become influential lobby)</div>
1980s<div>Under Thatcher, a militarised approach to maintaining public order and policing came about with 1984 Police and Criminal Evidence Act</div><div>Aggressive response to violent miners’ strikes in London and north - MCs used group punishment</div>Labour labelled ‘soft’ on crime bc of concerns about civil liberties, permissiveness, trade unionism, and long-term solutions for crime
1990s<div>New Labour ideology begins to emerge in 1993 and subsequently with Tony Blair as PM: ‘tough on crime, tough on the causes of crime’</div>Balanced traditional Labour concern with ‘causes’ and new realist recognition that crime was a problem needing short-run policies and a problem which disproportionately affected the disadvantaged (remerging penal welfararism?)
2000s<div>Diminishing crime rates and political salience of crime, Financial crisis 2008 and 2010 election leads to austerity re public spending, which decisive implications for the CJS and its institutions, Shifts in the CJS are part of a broader shift with the rise of neo-liberalism and individualism,&nbsp; minimum mandatory sentences, hybrid orders (ASBOs), curfews, prison privatisation</div>
Reiner, 2003<div>Increasing media focus - proportion of crime stories in newspapers doubled from 1960s to 1980s, Victim culture - zero-sum game wherein V v offender, Individualism and contextualisation - individually evil or completely innocent&nbsp;</div>
Garland-&nbsp;‘Culture of Control’Cultural and social routines increasingly focused on security and control issues - culture of control (V over offender, 0 sum game)
Lacey and Cooper<div>More than 3,000 criminal offenses created from 1980 to 2010, New trend is rise in preventative measures, which include ASBOs, Criminalisation as a safety- and security-oriented social police is apt to have inegalitarian outcomes</div>
Donohue–Levitt hypothesisLegalized abortion and crime effect<div><br></div>
American ‘exceptionalism’ - broad socio-legal contex<div>30% of people who don’t finish high school have prison records by mid 30’s,</div><div>One in four black children born in 1990 has had father imprisoned</div>
Ward<div>diverse and balance benches are paramount, but it is not the social class backgrounds of magistrates that matters - importance is in a reasonable understanding of the social ills and disadvantage inherent in society</div>
No of MagistratesMore than 20x more Magistrates than all other judges combined
Patrick Devlin"[lay people are the]&nbsp;<b><span style=""font-weight: 400;"">lamp that shows that freedom lives</span></b>"
Jenkins<div>juries are an archaic ritual that amounts to ‘little more than legal parlour games’</div>
De Tocqueville, Democracy in America"Juries:<br><ul style=""""><li style=""""><div>(i) teach ‘equity’</div></li><li style=""""><div><div>(ii) teach ‘responsibility’ for individual acts</div></div></li><li style=""""><div><div>(iii) invest each citizen with magisterial office</div></div></li><li style=""""><div><div>(iv) shape a nation’s judgement (‘Should be regarded as a free school which is always open’)</div></div></li></ul><ul style=""""><li style=""""><div><div>‘The jury is both the most effective way of establishing people’s rule and the most efficient way of teaching them how to rule’</div></div></li></ul>"
<div>‘The jury must be independently and indisputably responsible for its verdict free from any threats from the court’</div>Bushel’s Case
Thompson<div>Once juries deliberate they reach verdicts on virtually all charges (only 0.6% of all verdicts are hung juries)</div><div>Juries convict on almost two-thirds (64%) of all charges presented to them.&nbsp;</div>
Zander and Henderson<div>2% lasted over two weeks, in nearly 90% of cases they were out for under four hours. 96% of jurors said they found being on a jury “Very interesting” (74%) or “Fairly interesting” (22%), 4% were negative</div>
Ponting's CaseKey nullification case
Amlot<div>‘Parliament enacts and a powerful government with a strong whip may enact harsh laws. But no jury can be forced to implement what it considers to be a harsh law. In this way a jury plays a vital part in the democratic process.’</div>
Butler<div>In the case of Marion Barry, a popular black DC mayor, he was caught smoking crack on camera but a predominantly black jury refused to convict him</div><div><br></div><div><div>In the US ‘police state’ giving citizens the ‘key to the jail’ by having them sit on juries is an effective way to regulate an unjust justice system</div></div>
United States v Thomas<div>All-white jury except for one black man</div><div>White jurors complained the black man kept interrupting them during the trial and said the black man said he refused to convict ‘his people’, though this was in dispute</div><div>Judge kicked him out because he has ‘preconceived, fixed, cultural, economic, or social reasons that are totally improper’<br><br><div>CA said that the judge should jot have excluded the juror - not enough evidence</div></div>
Sparf<div>‘if the jury were at liberty to settle law for themselves, the effect would be … that the law itself would be most uncertain, from the different views, which different juries might take of it’</div>
Strategic Nullification‘If you are ever on a jury in a marijuana case, I recommend that you vote “not guilty” — even if you think the defendant actually smoked pot, or sold it to another consenting adult…if you exercise [this power], you become part of a proud tradition of American jurors who helped make our laws fairer.’
<div>Over 90% said ‘Not at all difficult’ to understand the evidence in the case, 90% of both prosecution and defence barristers said ‘No’ to ‘In this case do you think that the majority of the jury had difficulty in understanding the evidence?’&nbsp;</div>"<b><span style=""font-weight: 400;"">Zander and Henderson</span></b>"
Understanding the Judicial Instructions: Cheryl Thomas<div>Over 50% of the jurors perceived the judge’s directions as easy to understand, Younger jurors were better able than older jurors to comprehend the legal instructions, From 31% who fully understood to 48% who fully understood the legal questions in the case when given written instructions</div>
R v Mills and Others"<b><ul><li><div><span style=""font-weight: 400;"">Complex fraud case, bribes in the issuing of contracts in the building of the Jubilee line; after sitting on the jury for 2 years, they went on ‘strike’ and refused to hear the case</span></div></li><li><div><span style=""font-weight: 400;"">Because the case collapsed, the jurors were allowed to speak about the trial</span></div></li><ul><li><div><span style=""font-weight: 400;"">Said that they understood the evidence and what caused the collapse was the length of the trial</span></div></li></ul></ul></b>"
Juries Act 1974<div>prohibits juries from disclosing what happens in the deliberation room</div>
MOJ Study, simulated trial (Thomas 2010)<div>No evidence of discrimination in all white juries and mixed juries against BME defendants</div><div>Women jurors more likely to convict pre deliberation, but not post deliberation</div>
Mock Jury Study of jury deliberation in terrorism trial (Tait 2011)<div>Any bias that jurors admitted to in their survey was mediated by deliberation- deliberation has the effect of reducing bias</div>
Kalven and Zeisel<div>Judges agreed with the jury’s verdict in about three-quarters of all criminal trials</div><div>When they disagreed, the jury was seven times more likely to be lenient than the judge (convicting of a lesser offence or acquitting)</div>
78% police thought jury verdict “understandable in the light of the evidence”Zander and Henderson
Thomas Jefferson“I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution”
"<b><span style=""font-weight: 400;"">John Gastil</span></b>""<b><ul><li><div><span style=""font-weight: 400;"">After a trial, jurors are more likely to:</span></div></li><ul><li><div>Vote</div></li><li><div>Volunteer</div></li><li><div><span style=""font-weight: 400;"">Attend l</span>ocal meetings<span style=""font-weight: 400;""> and participate in</span> local politics</div></li><li><div><span style=""font-weight: 400;"">Have </span>confidence in justice</div></li></ul></ul></b>"