Posted in Uncategorized by drsivalaw on February 27, 2010

When judges decide cases, and sometimes make law thereby, what guides their decisions? In many cases there are clear rules for the judges to follow, but what happens when the rules run out? This is a question that has given legal writers a lot to think about, and one of the major jurisprudential debates of the late twentieth century, the Hart-Dworkin debate, concerned the extent to which a legal system can be regarded as a system of rules and how far account must be taken of other non-rule contributions.

Professor HLA Hart in his book The Concept of Law sought to distinguish obedience to a rule from habitual conduct “as a rule” by saying that a rule is essentially normative rather than predictive. The word “rule”, he said, has at least two meanings: it may be used in a descriptive or predictive sense: “as a rule I go to the cinema on Saturdays”, or in a normative sense: “there is a rule against walking on the grass”. He was concerned only with normative rules, though he recognised that some people might obey normative rules as a matter of habit, without consciously thinking of the rule at all.

The idea of obligation depends on the idea of a rule, Hart said. A victim may “be obliged” to hand over his wallet to a mugger if he fears some unpleasant consequence that is likely to occur if he fails to comply, and the effect of which is not trivial in comparison with the effect of complying. We say he is obliged to comply; such a statement refers to his own beliefs and motives and implies that he actually does comply. If he decides to resist the robbery in spite of the robber’s threat (and perhaps suffers the consequence), we certainly do not say that he was obliged to obey the robber’s demand. On the other hand, to say that a person “has an obligation” not to drive faster than 30 mph in a built-up area says nothing about the likelihood or the seriousness of the consequences that might follow non-compliance, nor about whether he actually complies with the obligation or not.

The identification of a normative rule and a corresponding duty or obligation therefore depends on two things, one external and one internal. First, there must be a general habit of conformity with the rule, and this is a matter of observation. This is not to say that there must be total conformity, but no percentage figure can be set down: Hart himself likened it to asking how many hairs a man can have and still be bald. On the other hand, if the “rule” is widely disregarded, it may not really be a rule at all.

Conformity alone is not enough, however: there is general conformity with the eating of turkey on Christmas Day, but this is a descriptive rather than a normative rule. Hart therefore demands a second element, a “critical reflexive attitude”, in that members of the society share in criticising those who deviate from the rule (which may involve self-criticism in some cases) and perhaps in making some demand for conformity. Typically, the critical reflexive attitude is shown in the way parents encourage their children to conform with the rule, using normative vocabulary involving words such as “must”, “ought” or “should”. For example, the practice that men remove their hats in church is something they “ought to do”, and so can fairly be described as a rule.

The use of language is ambiguous, however, and the position of the detached observer must be considered. A meat-eater may say to a vegetarian “you ought not to eat that sausage” without internally accepting that meat-eating is wrong, but by reference to the rules by which he understands the vegetarian to live. Conversely, the vegetarian may say to his friend “you ought not to eat meat”, putting the proposition forward as a moral philosophy but recognising realistically that it is not a rule. Only when the speaker recognises the existence of a social practice and adopts a critical reflexive attitude towards it can it be said that he internally accepts it as a rule.

The acceptance of a rule and the critical reflexive attitude towards it are not synonymous with approval of the rule. A person may commonly disapprove of a particular rule (whether legal, as in the requirement to pay a particular tax, or social, as regards appropriate dress for a particular occasion), and even feel morally able to disobey it, while accepting that it is a rule and that those who break it (including perhaps himself) are open to criticism on that account. Those who internally accept the rule are those who use it as a standard by which to measure their own or others’ behaviour, without necessarily believing that it is a good rule.

Rules and principles

According to Hart, law is essentially a system of rules, identified and prioritised by a “rule of recognition”. When the rules run out, he said, the judge has discretion to decide the case. The most cogent criticisms of this view came from Ronald Dworkin, who said that law contains not only rules but also principles: in “hard cases” where the rules do not cover a particular situation, or give an unacceptable answer, the judge must be guided by principles. Such principles are not external to the legal system and used just for guidance, as Hart would claim: rather, they are an integral part of the system. A judge need not follow principles rigidly – if he did they would be rules – but he must take them into account when exercising his discretion. A judge who departs from principles too often will find many of his decisions reversed on appeal, and to that extent would evidently be making wrong decisions. Certainly the idea of a persuasive precedent (which is clearly not a legal rule) is hard to explain in positivist terms, and gives powerful support to Dworkin’s criticism. The principles that guide the judges’ decisions, said Dworkin, are themselves part of the law. Lawyers and even students think it meaningful to say “The House of Lords reached the wrong decision in such-and-such a case”, even though the decision did not directly break any pre-existing rule.

Every legal problem, according to Dworkin, has just one right answer, and the judge’s task is to discover it. The right answer is the one that is “best” both in terms of its fit with the corpus of decided cases and in terms of its content. For example, suppose a chess player annoys his opponent by smiling at him: the rules of chess prohibit causing unreasonable annoyance to an opponent but say nothing expressly about smiling, and the referee has to make a decision as to whether it is allowed or not. The “right” answer depends on whether chess is more a form of psychological warfare or a purely analytic exercise, and the referee will decide which explanation is more consistent with the history and practice of the game.

The judges, said Dworkin, are engaged in an exercise similar to the writing of a chain novel: a TV soap opera is probably an even better analogy. Each writer has some freedom in respect of his episodes, but must ensure that the characters act in a way consistent with their past behaviour. Subject to producing such a fit, the author may develop the story as he wishes, but some developments may be better from a literary or dramatic point of view than others, and his job is to choose the best. An episode in which all the leading characters were simultaneously killed in a railway accident might well “fit”, but would probably not be regarded as the best way of developing the story for the future! In the same way, each interpretation of the law adds something to the legal story, but the law has an integrity of its own and the judge must ensure that his interpretation forms part of a coherent theory justifying the legal system as a whole.

Dworkin therefore argued that in determining the law a judge is constrained to act in accordance with legal principle, and is not (as Hart suggested) free to use his discretion in any way he chooses. He uses an analogy of a sergeant told to select his five most experienced soldiers, and another of a boxing referee told to award the fight to the more aggressive boxer, and says that although the sergeant and the referee are called upon to exercise their judgment the criteria on which they are to do so are clear, and they certainly do not have the total discretion envisaged by Hart’s theory of law. Judges should not have such wide discretion either: if a judge is free to choose without restraint whether to benefit P at D’s expense or vice versa, the law is reduced to a kind of lottery. What we surely expect a judge to do is to enforce the pre-existing rights of one against the other, and where those rights are not clearly spelled out by the rules of law, we expect him at least to apply certain established legal principles.

Lawson v Serco [2006] UKHL 3
In three conjoined cases, the House of Lords considered the territorial scope of s.94(1) of the Employment Rights Act 1996, which gives employees the right not to be unfairly dismissed. The question in each case, said Lord Hoffmann, was whether s.94(1) applied to cases in which the employment had some British and some foreign elements. This was a matter of statutory construction, and should be decided according to established principles, giving effect to what Parliament might reasonably be supposed to have intended and attributing to Parliament a rational scheme. But this involved the application of principles, not the invention of supplementary rules. On the other hand, the fact that the House was dealing in principles and not rules did not mean that the decision was an exercise of discretion: the section either applied to each of the employment relationships in question or it did not, and that was a question of law, albeit one involving judgment in the application of the law to the facts.

We consider now several examples of principles in operation.

Persuasive precedents and obiter dicta are evidently not rules – if they were they would be binding rather than persuasive – but are certainly taken seriously by subsequent judges.

Doughty v Turner Manufacturing [1964] 1 All ER 98, CA
A man P was badly burned when a workmate carelessly knocked a cement block into a bath of molten metal; there was no splash, but a minute or so later there was a violent and wholly unexpected chemical reaction. In Re Polemis [1921] 3 KB 560 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] 1 All ER 404 the Privy Council had disapproved this rule and had said liability existed only where the kind of damage was reasonably foreseeable. Following the latter decision, the Court found DD were not liable for P’s injuries: whether or not The Wagon Mound is binding on this court, said Harman LJ, we ought to treat it as the law.
Anderson v Rhodes [1967] 2 All ER 850, Cairns J
Vegetable merchants PP, acting on a verbal recommendation from other merchants DD, supplied potatoes on credit to a firm which subsequently went bankrupt. PP sued for negligent misrepresentation and the judge applied the principles set out by the House of Lords in Hedley Byrne v Heller [1963] 2 All ER 575. Academic lawyers, he said, might argue that those principles were obiter dicta and that he was bound by the contrary decision of the Court of Appeal in Candler v Crane Christmas [1951] 1 All ER 426. But when five members of the House of Lords have all said after close examination of the authorities that a certain type of tort exists, a judge of first instance should proceed on the basis that it does exist, without pausing to embark on an investigation whether what was said was necessary to the ultimate decision.
Caparo v Dickman [1990] 1 All ER 568, HL
PP bought shares in F plc with a view to taking it over, and bought more after seeing F’s auditors’ report. The shares then fell in value, and PP sued the auditors for their negligence in preparing their report. Giving judgment for DD, the House of Lords approved a dictum of Brennan J in the High Court of Australia that 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 by indefinable “considerations which ought to negative or limit the scope of the duty or the class of person to whom it is owed”.
Wright v Lodge & Shepherd [1993] RTR 123, CA
Mrs S was the driver of a Mini which broke down on an unlit dual carriageway in fog. A lorry driven by L, travelling at 60 mph, struck the Mini from behind and then swerved across the central reservation to strike two more cars, injuring W and killing K. L admitted liability but claimed a contribution from S. Although the presence of S’s car was clearly a factual cause of these injuries, the trial judge applied a dictum of Cairns LJ in Rouse v Squires [1973] 2 All ER 903 to the effect that the reckless driving of a third party might amount to nova causa interveniens, and found S not liable. [The Court of Appeal subsequently agreed.]

When the rules run out, the judges seek to justify their decisions by analogy with past cases (the “goodness of fit” test) or by explicit appeal to general principles (the “best development” test), and do not simply rely on unfettered discretion.

McLoughlin v O’Brien [1982] 2 All ER 298, HL
A mother P saw members of her family in hospital about an hour after a fatal road accident – one daughter was dead and her husband and two other children were seriously injured – and herself suffered psychological injury for which she sued the other driver. Lord Wilberforce reviewed the history of “psychic injury” cases and their step-by-step development of the law, and proposed an extension from a victim at the scene to one who (like P) came upon the “immediate aftermath” of the accident, subject to other criteria which P satisfied. Lord Scarman took a different approach, and said there was a general legal principle that tortfeasors were liable for the forseeable consequences of their acts: it was foreseeable that P would suffer psychological injury in these circumstances, and that was enough.
Gillick v West Norfolk & Wisbech HA [1985] 3 All ER 402, HL
A 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. The House of Lords considered various principles such as the rights and responsibilities of parents, the human rights of children as individuals, the need to respect doctors’ professional judgments, the importance of medical confidentiality, the welfare of the child as a cornerstone of family law, and the importance of not encouraging under-age sex, before deciding by a majority of 4-1 that a child under 16 who has sufficient intelligence to understand fully the implications of the proposed treatment (a “Gillick competent” child) can give her own consent to medical treatment.
Munroe v London Fire Authority [1997] 2 All ER 865, CA
Firefighters employed by DD were called to PP’s premises, where a number of small fires had been started by third parties. When the firefighters arrived the fires had apparently been extinguished, and after looking around they decided there was no more danger and left. One of the fires was not in fact extinguished and flared up again, causing damage to PP’s premises, and PP sued. In a preliminary hearing, Rougier J considered whether the fire brigade owed PP a duty of care. There were no decided cases directly on the point, so his judgment referred to 24 cases about duties of care owned or not owed by police officers, prison officers, hospitals, local councils, river authorities and so on. The closest analogy, he felt, was with the police, and he applied the reasoning in Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238 to hold that the brigade owed no duty of care to PP. [The decision was affirmed on appeal: Stuart-Smith LJ said the fire brigade was not under any common law duty to repond to a call for help, and was not liable if it failed to do so promptly or effectively or at all.]

Where the rules seem to lead to an unacceptable result, the judges may appeal to principles as justification for setting the rules aside. This goes beyond Hart’s “exercise of discretion”: if the rules are clear there is no scope for any exercise of discretion at all. Rather, the judges are weighing a powerful principle “that the rules should be applied” against another principle of fairness or justice or morality and coming down in favour of the latter.

Riggs v Palmer (1889) 115 NY 506, Supreme Court (New York)
A court had to decide whether a man who had murdered his grandfather could take his inheritance under the victim’s will. The rules of succession were apparently clear, but the judges cited repeatedly the principle that “no one should profit from his own wrong” and held that this overrode the provisions of the will, balancing this against the principle calling for a literal interpretation of the statute. The written rules, they said, were subject to certain overriding principles, and the legislature “could not possibly” have intended the murderer to inherit.
Central London Property v High Trees House [1947] KB 130, Denning J
In 1937 the owners PP leased a block of flats in London to DD at an agreed rent. When war broke out, many flats were left empty as people moved out to escape the bombing, and PP agreed to reduce the rent by half. DD paid the reduced rent until the end of the war, and PP then claimed for the “arrears”. The rules were clear – at common law, a promise made without consideration is not legally binding – but Denning J said that 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.
R v R (rape – marital exemption) [1991] 4 All ER 481, HL
Removing the “marital rape” exemption to affirm the conviction of a husband who had raped his own wife, the House of Lords clearly took into account a twentieth-century principle (not expressly stated anywhere as a rule of law) concerning a woman’s autonomy over her own body. This principle (and others) they then weighed against the very strong principle of stare decisis in relation to more than two hundred years’ recognition of the exemption and decided that the greater weight was in favour of the former.
Re Pinochet [1998] 4 All ER 897, HL; [1999] 1 All ER 577, HL
The House of Lords, reversing the Divisional Court, ruled 3-2 that A’s position as a former head of state did not confer immunity from extradition proceedings based on allegations by a third country of torture and other violations of human rights. Amnesty International was allowed to present an amicus curiae argument at this hearing, and it subsequently emerged that Lord Hoffmann, one of the judges in the majority, had for some years been a non-executive director of Amnesty International Charity. There is normally no appeal from decisions of the House of Lords, but A sought to set aside the Lords’ judgment, and a panel of five different Law Lords allowed his application. Lord Browne-Wilkinson said the fundamental principle is that a man must not be a judge in his own cause: Lord Hoffman was so closely and actively associated with one of the parties that he was disqualified from hearing the case regardless of whether or not there was any actual appearance or risk of bias. This did not mean that judges could never sit in cases involving charities they supported, but where the judge was a director or senior officer of a charity that was party to a case, disqualification is automatic subject to the possibility that the parties (having been fully informed) might waive any objection.

There are many rules both in statute and in common law that require a judge to determine (for example) whether or not certain conduct is reasonable, and this is often not expressly covered by rules. Here and in many other situations the judge must therefore “exercise his discretion”, but he is expected to do so in accordance with certain well-established principles and may be reversed on appeal if he does not.

R v Mason [1987] 3 All ER 481, CA
Section 78 of the Police And Criminal Evidence Act 1984 gives a trial judge discretion to exclude prosecution evidence if in the judge’s opinion the admission of the evidence would have such an adverse effect on the fairness of the trial that he ought to exclude it. Where the police obtained a confession by telling the accused man and his solicitor that his fingerprints had been found at the scene of a burglary, the judge exercised his discretion to admit the evidence. The Court of Appeal quashed the conviction, saying the judge had not properly taken into account the deception practised on the solicitor and had thus exercised his discretion wrongly.
Re S (Custody) [1991] 2 FLR 388, CA
M walked out leaving F with a girl G, aged 2. F was subsequently awarded custody, but M kept G after an access visit and subsequently obtained from a judge a custody order in her favour. Allowing F’s appeal and remitting the case to the family proceedings court for a new hearing, the Court of Appeal said G’s welfare was the first and paramount consideration: there is no legal presumption in favour of one parent over another, even though in practice a small child is usually better off with its mother, and the judge was wrong to prefer his discretion over the magistrates’.
Barrett v Ministry of Defence [1995] 3 All ER 87, CA
A sailor S became so drunk one night that he passed out and, having then been inadequately treated, choked to death on his own vomit. His widow P sued the Navy for their negligence. The trial judge though it fair and reasonable to impose on DD had a duty of care to prevent S becoming drunk, but the Court of Appeal disagreed. I can see no reason, said Beldam LJ, why it should not be fair, just and reasonable for the law to leave a responsible adult to assume responsibility for his own actions in consuming alcoholic drink. No one is better placed to judge the amount the he can safely consume or to exercise control in his own interest as well as the interest of others.

Even in sentencing, where judges have considerable discretion within the statutory limits, the Court of Appeal lays down guidelines for each offence. They will not alter a sentence that differs only slightly from the guideline, but the judge’s discretion is certainly not unlimited, and a sentence that is wildly out of line (even though within the rules) will be changed and the judge possibly criticised.

Principles are not simply rules of a different kind: they differ from rules in two fundamental ways.

First, the validity of rules is determined by the rule of recognition, which relates to their form and pedigree. A rule is valid if it satisfies certain criteria, normally quite independent of the rule’s content. But legal principles cannot be validated by pedigree: they are “valid” because they are felt to be appropriate by society and, in particular, by the judges. The rule of recognition cannot bring them in except by saying that they are those principles which society regards as legally binding, and that is a circular definition which involves an examination of the content of the principle in order to assess its validity.

Second, rules of law cannot conflict: any rule of recognition must necessarily include some test for determining which (if either) of two apparently conflicting rules is valid. In English law, for example, a later statute supersedes an earlier, a statute takes precedence over a common law rule, and directly applicable European law takes precedence even over Acts of Parliament. But there is no limit on conflicting principles. Suppose, for example, that we regard the principle that “no one shall profit from his own wrong” as a rule of law. We see immediately that there are exceptions to this “rule” – the doctrine of adverse possession, for example – and we seek to explain them. In terms of rules this is not easy, but in terms of principles it is simply a matter of setting that principle against another (and, in this case, weightier) that “stability and certainty of land tenure is to be promoted”.

Principles and policies

Dworkin’s general view of law is a liberal democratic one. He demands that the government treat people as deserving equal concern and respect, and impose no constraint depriving any citizen of a sense of equal worth. Any class or caste system that counts some members inherently less worthy than others, he says, is a system yielding no communal responsibilities and hence no moral duty to obey the law. Individual rights are fundamental, and the law should not be used to enforce private morality. Rather, the law acts as a constraint on the government and requires it to justify every use of coercive force against the individual.

Dworkin also demanded that judges respect the idea of the democratic mandate so far as policy-making is concerned, and leave matters of policy wherever possible to the elected legislature. The judges’ role is to apply legal rules and legal principles – the latter already exist and have merely to be discovered – rather than to make legislation based on policy and affecting retrospectively the rights of the parties in the instant case. He saw it as a matter for regret that judges do sometimes claim to be applying policy considerations when in fact they are looking for legal principles, and a matter for condemnation that they sometimes apply policy in fact as well as in name. He thus drew a distinction between principles and policies, though conceding that most principles could be framed as policies and most policies as principles by anyone so inclined. A policy, he said, is a standard setting out a goal to be achieved, usually in terms of the economic, social or political well-being of the community. A principle, on the other hand, sets individual rights above communal well-being and imposes a standard of justice or fairness or some other moral dimension. Matters of policy should be left to the elected legislators; judges should concern themselves only with legal principles, distinguishable from merely moral principles by the fact that lawyers and others regard them as being part of the legal system.

In ordinary debate, a person who asserts that a certain decision is “a matter of principle” is generally understood to mean that the consequences are immaterial to the decision, and Dworkin’s definition is similar. Principles, he says, are propositions that describe rights; policies are propositions that describe goals. Individual rights trump utilitarian goals, though in a time of major emergency (such as all-out war) it may be permissible to give goals preference over rights in order to regain or preserve a state of affairs in which principled decisions are once again possible. In general, however, judges should confine themselves to principles and rights, and leave matters of policy and goals to the elected legislature.

On the whole, the judges tend to agree with this view at least in what they say. Questions of social policy are better left to Parliament, they say, and it is not for judges to interfere in such matters.

Fisher v Bell [1960] 3 All ER 731, DC
A shopkeeper displayed in his window a flick knife with a price ticket, and was prosecuted for offering for sale an offensive weapon contrary to the Restriction of Offensive Weapons Act 1959. The Divisional Court said the phrase “offer for sale” was to be taken literally, in accordance with its meaning in contract law, and that D’s display of the weapon was no more than an invitation to treat. This interpretation made the relevant section of the statute almost wholly useless, but was consistent with the strict approach commonly adopted towards penal provisions. This is classically a decision based on principle, perhaps even wrongly so in the circumstances, and clearly takes no account of policy considerations.
Bradbury v Enfield LBC [1967] 3 All ER 434, CA
The local authority DD anticipated by some months Ministerial approval of a reorganisation plan for eight schools. Goff J conceded that DD were in breach of the statutory rules providing that they “shall not do anything” prior to such approval, but refused to grant relief because of the major inconvenience that would be caused. However, the Court of Appeal granted the injunction sought: Lord Denning MR agreed there might well be considerable upset for a number of people, but thought it more important to uphold the rule of law.
Morgans v Launchbury [1972] 2 All ER 606, HL
The victims of a road accident sued the owner of a car, claiming she was vicariously liable for the negligence of the driver, a friend of her husband driving the husband to a restaurant after an evening at the pub. They claimed it was a “family car” and that the husband should be regarded as joint owner with the wife. The House of Lords found for the owner and refused to bring into the law the novel “family car” concept. Lord Pearson said 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 such new direction must be set by Parliament for the future, not by the courts retrospectively.
Blathwayt v Cawley [1975] 3 All ER 625, HL
A man T made a well which left substantial property on trust to C for life and then to C’s sons, on condition that they were not and did not become Roman Catholic. T died and the property passed to C, who subsequently joined the Roman Catholic church. In a judgment based mainly on technical matters, the House of Lords said obiter that the public policy against religious discrimination must give way to the principle of testamentary freedom.
McLoughlin v O’Brian [1982] 2 All ER 298, HL
P’s family were injured in a road accident, and she suffered psychiatric illness after seeing them in hospital. She sought damages from the other driver, although she had not been at the scene of the accident, and the House of Lords agreed she should succeed. Lord Scarman said that by concentrating on principle instead of policy the judges could keep the common law flexible and consistent, and keep the legal system clear of policy problems which neither it nor the trial process were equipped to solve. If this led to socially unacceptable results, Parliament could legislate to draw a line or map out a new path. Why should the courts not draw the line, as the Court of Appeal had tried to do in this case? Because the policy issue – where to draw the line – was not justiciable: the problem was one of social, economic and financial policy.
Cambridge Water v Eastern Counties Leather [1994] 1 All ER 53, CA & HL
A tanning firm on a small industrial estate used organochlorides which were stored in drums on their land. Over time there were small spillages on the land, and chemicals percolated down (over a period of several years) and entered the water supply. When new EC quality standards for drinking water were introduced, the level of chemicals in the water abstracted from that area was unacceptable, and the water company sued for damages. Giving judgment for PP in the Court of Appeal, Mann LJ said that where (as here) the law binding on the court was clear, the court’s decision could not be affected by policy considerations. Whether that old law was still appropriate for modern conditions was for others [i.e. for Parliament] to decide. The House of Lords subsequently reversed the decision on the basis that the existing law was not as clear as it had appeared, but agreed on the policy question. The protection and preservation of the environment is now perceived as being of crucial importance to the future of mankind, said Lord Goff, and public bodies are taking significant steps to make the polluter pay for damage to the environment, but it does not follow that a common law principle should be developed or rendered more strict to provide for such liability. On the contrary, it may well be undesirable that the courts should do this.
Hunt v Severs [1994] 2 All ER 385, HL
P had been injured in a road accident through D’s negligence, but D visited her regularly while she was in hospital, subsequently married her, and continued to provide part of her care. The trial judge awarded damages which included an amount for the care being provided by D, and the Court of Appeal upheld this award, but the House of Lords reversed this decision. The fact that the damages would actually be paid by D’s insurers made no difference, said Lord Bridge; to accept this as a relevant factor would represent a novel and radical departure in the law of a kind which only the legislature might properly effect. At common law, the fact that a defendant was contractually indemnified by a third party could have no relevance whatever to the measure of liability.
R v Clegg [1995] 1 All ER 334, HL
A soldier who used excessive force and killed an escaping joyrider appealed against his conviction for murder, but the House of Lords said no alternative verdict of manslaughter was possible in these circumstances. Lord Lloyd said he was not averse to judges’ developing law, or even making new law, when they could see their way clearly, even where questions of social policy were involved. A good recent example would be the decision that a man could be guilty of raping his wife. But in the present case their Lordships should abstain from lawmaking: the point in issue was closely related to the wider issue of whether the mandatory life sentence for murder should be retained, and that wider issue could only be decided by Parliament. [The conviction was later quashed on different grounds.]
C (a minor) v DPP [1995] 2 All ER 43, HL
A 12-year-old boy A was charged with interfering with a motor cycle under s.9(1) of the Criminal Attempts Act 1981. The magistrates convicted him, and the Divisional Court not only upheld the conviction but declared the presumption obsolete: it had no utility today, said Mann LJ, and ought to go. The House of Lords disagreed. The presumption had been discussed in many official reports, said Lord Lowry, and 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. The imperfections attributed to that doctrine could not provide a justification for saying that it was no longer part of English law, and to sweep it away under the doubtful auspices of judicial legislation was impracticable.
Al-Masari v Home Secretary (1996) unreported
A Saudi dissident A applied for political asylum in the UK. The government of Saudi Arabia objected to his writings, which advocated Muslim fundamentalism and were highly critical of that government, and threatened economic measures against the UK if A was allowed to continue. The UK government acknowledged implicitly that A’s life would be in danger if he were returned to Saudi Arabia, but refused political asylum and ordered his deportation to a third country willing to receive him. The Home Office minister argued that a balance had to be struck between A’s right of free speech and thousands of British jobs. The Chief Immigration Adjudicator (Judge Pearl) allowed A’s appeal, saying DD had not established that Dominica (to which A was to be deported) was a safe third country. The Home Office subsequently granted “exceptional leave to remain” in the UK for four years.
R v Davis [2008] UKHL 36
A man D was charged with murder. The main witnesses against him were frightened to testify in open court, so the judge ordered that their identities should be kept secret (from the defendant as well as from the public). Allowing D’s appeal against his conviction, the House of Lords said that a defendant’s right to confront his accusers is fundamental to the adversarial system of justice, and any departure from this common law rule would be a matter for Parliament.

The judges’ words are sometimes belied by their actions, however, and there are many examples of cases in which judicial decisions have clearly been based on social policy goals rather than on individual rights.

Smith v Hughes [1960] 2 All ER 859, DC
A number of prostitutes DD were charged with soliciting “in a street or public place” contrary to s.1(1) of the Street Offences Act 1959. One had been on a balcony above the street, and others had been sitting behind open or closed windows at first-floor level. Upholding their convictions, 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 DD could be clearly seen from the street that was sufficient. The mischief rule is essentially a rule of policy, but its use can probably be justified if the court is genuinely seeking to determine the intention of Parliament.
Shaw v DPP [1961] 2 All ER 446, HL
D published a booklet containing the names and addresses of prostitutes, their photographs, and details of the services they provided, and was charged with conspiracy to corrupt public morals, a supposed common law offence never previously charged. The House of Lords (Lord Reid dissenting) upheld his conviction. Viscount Simonds said that in the sphere of criminal law he had no doubt the courts retained a residual power to enforce the supreme and fundamental purpose of the law, namely, to conserve not only the safety and order but also the moral welfare of the state. It was their duty to guard against attacks which might be the more insidious because they were novel and unexpected. Here was a policy decision pure and simple.
Chadwick v British Railways [1967] 2 All ER 945, CA
A rescuer who voluntarily spent some six hours helping to bring the dead and injured out of the wreckage at a particularly harrowing train crash suffered foreseeable psychiatric injury, and was awarded damages against British Railways, whose negligence had led to the crash. Although he had come onto the scene voluntarily, the courts as a matter of policy do not want to discourage rescuers.
Nettleship v Weston [1971] 3 All ER 581, CA
A learner driver D went out for her first lesson, supervised by a friend P. D crashed the car into a lamppost, and P was injured. P’s claim for damages was upheld by the Court of Appeal, subject to a deduction for contributory negligence. Even learner drivers, said the Court, 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. Lord Denning MR justified the decision by reference to policy: the injured person can recover damages from an insurer only if the driver is liable in law. So the judges must see to it that the is liable unless he can prove care and skill of a high standard. In this branch of the law, he went on, we are moving away from the concept “No liability without fault” to another, “On whom should the risk fall?”. Morally the learner driver is not at fault, but legally she is liable because she is insured and the risk should therefore fall on her.
DPP v Majewski [1976] 2 All ER 142, HL
Following a fight in a pub, D was charged with assaulting a constable and causing actual bodily harm; his defence was that he had taken a mixture of drink and drugs and had no intention to commit the acts in question. The Criminal Justice Act 1967 s.8 says that in determining whether a defendant intended certain consequences the court must have regard to all the evidence, the burden of proof being on the prosecution, and must not infer such an intention merely because the consequences were likely, but the House of Lords said that rule was irrelevant to cases such as this. One of the prime purposes of the criminal law, said Lord Simon, is the protection from unprovoked violence of people who are pursuing their lawful lives; to allow intoxication as a defence would leave the citizen unprotected from such violence where the perpetrator had taken drink or drugs and did not know what he was doing. The decision is not hard to understand, and is probably right, but it is based on policy considerations going to goals, and ignores the principle that criminal statutes are to be construed narrowly.
Ashton v Turner [1980] 3 All ER 870, Ewbank J
An escaping burglar was injured through the negligence of his getaway driver, but his claim for damages got short shrift from the courts. As a matter of policy, said the judge, the law will in some circumstances refuse to recognise the existence of a duty of care owed by one participant in crime to another.
R v O’Grady [1987] 3 All ER 420, CA
Following a drunken brawl, D was charged with murder; his defence was that (in his drunken state) he had overestimated a threat to himself and responded in self-defence. Dismissing his appeal against his conviction for manslaughter, the Court of Appeal said the principle that a person should not be penalised for an honest mistake gave way to the policy consideration that society should be protected from those who do dangerous things as a result of intoxication.
Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238, HL
In spite of a massive police search, the “Yorkshire Ripper” remained free for several years and murdered a dozen young women. The mother of his last victim sued the police for negligence in failing to catch him, alleging inefficiency and errors in their handling of the investigation. The House of Lords said she could not succeed: the police owed no duty of care towards Susan Hill to protect her from the Ripper. Glidewell LJ in the Court of Appeal and Lord Keith in the House of Lords suggested that there were public policy reasons for not allowing claims like these. If such claims were allowed, they said, the police would be inhibited in the exercise of their professional judgment, and a vast amount of police time and money would be diverted from the fight against crime to the defending of civil cases.
Alcock v Chief Constable of South Yorkshire [1991] 4 All ER 907, HL
Claims were brought by relatives and friends of some of the people killed in a crush at the Hillsborough football stadium in Sheffield after the police had negligently allowed a crowd to build up too rapidly in a particular part of the stand. The House of Lords reviewed the law on the scope of liability for psychiatric injury, and confirmed the continued existence of tests other than mere foreseeability. Rescuers should continue to qualify on policy grounds, said the House, even though they were not in a close relationship with the victim. But otherwise, several of their Lordships referred to the “floodgates” argument, and the fear of opening up unlimited liability, while Lord Oliver openly used the word “policy” in explaining his decision.
R v Powell [1997] 4 All ER 545, HL
DD went with another man to buy drugs from a dealer; the dealer was shot as he came to the door and (as it could not be shown who fired the shot) both were convicted as accomplices to murder. Affirming DD’s conviction, Lord Hutton said it was enough to found a conviction for murder that a secondary party to a joint enterprise realised the principal might kill with the intention of causing death or serious injury. It might be anomalous and illogical that a secondary party could be convicted on lesser mens rea than was required of the principal, but the rules of the common law were based in part on practical concerns and (in relation to crimes committed during a joint enterprise) the need to give effective protection to the public against criminals operating in gangs.

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