Judge made Law and Principles of Statutory Interpretation

Judge-made Law and Principles of Statutory Interpretation

In the English law, the concept of judge-made law is contentious and controversial. specifically in the realm of law dissertation help. The English legal system demonstrates the application of the principle of parliamentary sovereignty to the extent that even the judicial review is not permitted over statutory law, and even where judicial review is done over executive action, it is done to support the parliamentary legislation, leaving little scope for original law making for the judges. Judicial role has become more attuned to interpreting law in context of Parliamentary intention and accordingly, the rules of statutory interpretation are used by the judiciary to perform its function.

Conversely, common law itself is seen as a judge made law as opposed to statute, which is law made by the Parliament. This essay takes the position that judges do make the law from time to time but even when they do they apply statutory interpretation principles in order to show that the construction given by them is to give effect to Parliamentary intention.

The English judiciary has used the literal rule of interpretation in order to ensure that the intention of the Parliament is given effect by it. In Sussex Peerage Case, the court held that the only rule for the construction of statutory law, is that it should be construed according to the Parliamentary intent. Furthermore, if the statute is precise and unambiguous, then the natural and ordinary sense of the words be construed. However, there may be places where the statute is imprecise and ambiguous, or where the ordinary and natural meaning leads to absurdity. In such situations, the judiciary applies the golden rule as laid down by Lord Wensloydale in Grey v Pearson, wherein he wrote that in cases of natural meaning leading to absurdity or some repugnance with the rest of the instrument, then the meaning may be modified, so as to avoid that absurdity and inconsistency. However, again the golden rule emphasis that the intention of the Parliament must be given effect to and such intention can be seen running through the rest of the statute. In other words, the

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1. Wilson v First County Trust Ltd (No 2), [2003] 3 WLR 568.
2. G Slapper and D Kelly,The English Legal System (Oxon: Routledge 2009) 5.
3. (1844) 11 Cl&Fin 85.
4. Francis Bennion, Bennion on Statutory Interpretation (5th edition, LexisNexis 2008)
5. (1857) 6 HL Cas 61.
statute still serves as a guide to interpreting the ambiguous provisions. There is no scope here for the judge-made law.

The settled principles of literal and golden rules of interpretation demonstrate a focus that is always on giving effect to the Parliamentary intention. The purposive statutory construction approach also focusses on giving effect to the true intentions of the legislature. However, the purposive approach is very different from the literal construction approach. The purposive approach was described by Lord Browne-Wilkinson as the approach which seeks to give effect to the true purpose of legislation by looking at much more extraneous material that bears upon the background against which the legislation was enacted.7

The judiciary has from time to time exercised a law making function in some cases. Therefore, the proponents of the original theory may find such support from Hunter v Canary Wharf and Airedale NHS Trust v Bland. In both of these cases, new principles of law were laid down by the court. In Airedale, the House of Lords allowed a declaration to lawfully discontinue life-sustaining treatment and medical support of a person who had been in a vegetative state for the past three years. This despite there not being lawful euthanasia allowed under common law. In another case, R v R the court held that a husband may be penalised for the offence of marital rape, interestingly when marital rape was not recognised as an offence by legislation or common law.

The adoption of the purposive construction approach may at times see the judiciary adapting a more flexible approach towards interpretation of statutes. Here, mention may be made of the rule of law principle, which allows for many constructions so that each judge may conceive of it in an individual manner. Lord Bingham has actually identified eight components of rule of law, including international law. In fact, Lord Bingham has said that the interpretation of the rule of the law is the task of the

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6. Notham v London Borough of Barnet, [1978] 1 WLR 220; Pepper (Inspector of Taxes) v Hart [1993] AC 593.
7. Pepper (Inspector of Taxes) v Hart [1993] AC 593
8. [1997] UKHL 14.
9. [1993] A.C. 789.
10. [1991] UKHL 12.
11. Luc B Tremblay, Rule of Law, Justice, and Interpretation (MQUP 1997) 146.
12. Gillian Triggs, ‘Lord Bingham: Of Swallows and International Law’, Legal Studies Research Paper No.8/116, October 2008, accessed 11th January 2017
courts. In that case, it would seem that the courts may apply principles of interpretation in a manner which would give effect to a construction which gives primacy to the rule of law. In that case, it may be possible that courts do make law as well.

The use of the principle of rule of law to indirectly review the Parliamentary law or even lay down new principles of law is not a novel approach and it can be traced as far as as to Justice Coke’s judgement in Bonham’s case. In more contemporary times, the rule of law is also used as certainty, wherein the focus of the law is to divert the uncertainty created by ambiguous statutory rules to a more certain construction because the law as a whole must produce certainty, even where there is uncertainty.

Lord Denning has used the approach in Magor and St. Mellons Rural District Council v Newport Corporation for filling the gaps and making sense of enactment. Usually, judiciary has also adopted a circumstantial approach towards judicial lawmaking. In McLoughlin v O’Brian, Lord Scarman observed that “the objective of judges is the formulation of principles; policy is the prerogative of Parliament.” In Duport Steel Limited v Sirs, Lord Scarman wrote:

“Parliament makes and unmakes the law; the judge’s duty is to interpret and apply the law, not to change it to meet the judge’s idea of what justice requires. Our law requires the judge to choose the construction which in his judgement best meets the legislative purpose of the enactment.”

In conclusion, the question as to whether judges do make the law or not has to be considered after considering the actual case law in the context of principles of statutory principles. The literal approach is used by the courts to give the natural meaning to the statutory provision, but the purposive approach allows a wider space to the judiciary, so that at times it does happen that judges make law.

List of Cases

Airedale NHS Trust v Bland, [1993] A.C. 789.

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13. Lord Bingham, ‘The Rule of Law’, (2007) 66(1) The Cambridge Law Journal 67.
14. 8 Co. Rep. 107a, 113b, 77 Eng. Rep. 638, 646 (1610).
15. Luc B Tremblay, Rule of Law, Justice, and Interpretation (MQUP 1997) 155.
16. [1950] 2 All ER 1226.
17. [1983] 1 AC 410.
18. [1980] 1 WLR 142.

Bonham’s case, 8 Co. Rep. 107a, 113b, 77 Eng. Rep. 638, 646 (1610).

Duport Steel Limited v Sirs, [1980] 1 WLR 142.

Magor and St. Mellons Rural District Council v Newport Corporation, [1950] 2 All ER 1226.

McLoughlin v O’Brian, [1983] 1 AC 410.

Grey v Pearson, (1857) 6 HL Cas 61.

Hunter v Canary Wharf, [1997] UKHL 14.

Notham v London Borough of Barnet, [1978] 1 WLR 220

Pepper (Inspector of Taxes) v Hart [1993] AC 593.

R v R, [1991] UKHL 12.

Sussex Peerage Case, (1844) 11 Cl&Fin 85.

Wilson v First County Trust Ltd (No 2), [2003] 3 WLR 568.

Bibliography

Aim.

The aim of the research is to conduct a descriptive literature review on selected techniques of forensics with the purpose of understanding their use within the field of forensic investigation, and the acceptability of these techniques within the legal framework.

There are two cases which are analysed in detail in this work. One case is the famous case of the ‘Birmingham Six’ and the second case is the case of the Omagh bombing. The central aim of these two analysis is to objectively focus on the role forensic science played in clearing the Birmingham six of the bombing offence they were convicted of and on the reverse side how forensic science played a definitive role in identifying those responsible for the Omagh Bombing in Northern Ireland.

Objective.

The objective pursued throughout is related to the study of the use of the technique to present evidence in a trial and to study the admissibility of the evidence based on the technique.

Significance

Forensic methods are important for crime scene investigation because these methods may provide or lead to valuable evidence, that has a scientific basis and which can be instrumental in finding criminals and fixing criminal liability. Thus, an important measure of effectiveness of forensic methods in crime scene investigation is the ability of the evidence to convince the jury and judge of its reliability. The significance of this research is seen in the interactions between forensic techniques and their effectiveness in criminal justice system, with the help of two cases, both of which involved use of forensic techniques ineffectively.

In investigation of crimes, there is an increasing application of different forensic techniques. The forensic techniques that have evolved over a period of time include a plethora of techniques from those that are purely laboratory oriented to those that involve use of neurological or psychological processes. This research focusses on some of the techniques that were seen to be used in the cases of Birmingham Six and Omagh bombing.

In the case of Birmingham Six, forensic scientists cast serious doubts on the reliability of the evidence placed in the case, which led to the conviction of the six men for the Birmingham pub bombings. The Griess Test was used to trace the nitroglycerine to the people charged (Gudjonsson, 2003, p. 453). Other tests used were TLC test and the ‘sniffer test’. It is interesting that the Griess Test was widely disregarded as unreliable by the majority of forensic experts who testified in the case (Gudjonsson, 2003, p. 453). The TLC test was held unreliable by its creator, John Yallop, in the court, who said that only the TLC could not be relied upon for proving that nitroglycerine traces were found on principal accused, the members of the Maguire family (Gudjonsson, 2003, p. 453). The men were convicted on the basis of the Dr Skuse’s forensic test and the confessions obtained by the police (Gudjonsson, 2003).

In Omagh bombing case, in Northern Ireland, the principal forensic technique used was LCN (Low Copy Number) DNA testing. In fact, the entire case against the principal accused, Sean Hoey, hinged on the evidence obtained through LCN (Krimsky & Simoncelli, 2013, p. 176). There was some divergence amongst the experts on the use of the technique (Krimsky & Simoncelli, 2013). The validity of the evidence was doubted by Judge Reg Weir himself, who said:

“It is not my function to criticise the seemingly thoughtless and slapdash approach of police and SOCO officers to the collection, storage and transmission of what must obviously have been potential exhibits in a possible future criminal trial but it is difficult to avoid some expression of surprise that in an era in which the potential for fibre, if not DNA, contamination was well known to the police such items were so widely and routinely handled with cavalier disregard for their integrity. The position so far as NIFS is concerned is even more difficult to comprehend as everyone there must have been very well aware of the risks of improper labelling, storage and examination.” (Krimsky & Simoncelli, 2013, p. 176).

In light of the statement above, it is not surprising that Sean Hoey’s conviction on the basis of the evidence obtained through the LCN technique was not obtained. In The Queen v Sean Hoey, Hoey was acquitted of all the charges against him. This points to the ineffectiveness of the LCN DNA technique. The decision also led to the establishment of a Forensic Science Regulator, headed by Professor Caddy, for the purpose of further study into the LCN technique and its utility in criminal investigation (Butler, 2012, p. 316). The Caddy report recommended that the jury should always be informed that the nature of the original starting material is unknown and the time at which the DNA was transferred cannot be inferred (Caddy, Taylor, & Linacre, 2008, section 7.4). The report was supportive of the use of LNC DNA technique (Adam, 2016).

It is noteworthy that the prosecution had relied on forensic evidence that was presented in two stages, that is, the initial examination of the reconstructed bomb and the later reexamination in the Forensic Science Service using the LT DNA testing (Caragine, Currie, & O'Connor, 2014, p. 176). The chain of custody or the lack of it, made the evidence weak as per Judge Weir, as is evident from the observation made by him in the judgement.

The effectiveness of forensic methods in crime scene investigation, is gauged from the legal impact of the method and its reception by the court and the jury. In both the cases that are to be studied in this work, it is seen that the effectiveness of the chosen forensic methods did not lead to the desired results. In the case of Birmingham Six, these men spent more than 15 years after being convicted on the basis of evidence that was later proved invalid. In the case of Sean Hoey, the evidence presented before the court was not convincing enough to get a conviction.

Design and Methods

This literature review will be conducted with the use of descriptive research design. As there are two cases selected for the research, to some extent the case study method will also be used. Being a literature review, research will be conducted on the basis of secondary resources like books, articles in journals and databases.

Descriptive research design

Descriptive research is a useful method of obtaining information, without having to test or verify the information (Monsen & Horn, 2008, p. 5). Once a well- focused research question is devised, descriptive research can be used to answer it (Monsen & Horn, 2008, p. 5). The research methodology would allow the researcher to gather information about the existing conditions (Sevilla, Ochave, Punsalan, Regala, & Uriarte, 2007, p. 94).

Case Study

A case is defined as an object of study (Vaus & Vaus, 2001, p. 220). A case study may involve study of an individual, an organisation, a decision of the court, or a situation. Collecting and analysing information about the case involves an underpinning of theory (Vaus & Vaus, 2001, p. 221). Case studies can also be descriptive, where the description highlights certain aspects of the case, although all aspects may not be described (Vaus & Vaus, 2001).

A case study is defined as an in-depth inquiry into a topic or phenomenon within its real-life setting (Yin, 2009). Case study research is best used when there is a difficulty to separate the phenomenon under study and the context where the phenomenon is studied or where the boundaries between the two are not recognised (Yin, 2009). Case studies are used in most types of research and researchers. Case studies may be used for descriptive and explanatory purposes in addition to its exploratory purposes (Yin, 2009).

Two cases which are analysed in detail in this work. One case is the famous case of the ‘Birmingham Six’ and the second case is the case of the Omagh bombing. The central aim of these two analysis is to objectively focus on the role forensic science played in clearing the Birmingham six of the bombing offence they were convicted of and on the reverse side how forensic science played a definitive role in identifying those responsible for the Omagh Bombing in Northern Ireland.

Secondary research

As an extended literature review, this work involves secondary research methods. The research strategy involved will include searching for papers both manually as well as electronically. Journals in both print as well as electronic formats will be referred to. Databases will also be used for the purpose of generating information that can become subject matter of this extended literature review. Some of these journals and database are named here:

• Names of Journals (print): International Journal of Legal Medicine, Journal of Forensic and Legal Medicine, Journal of Forensic Research, British Journal on Forensic Practice, Forensic Science International, International Journal of Law and Psychiatry, Journal of Digital Forensics, Security and the Law, The Journal of Forensic Psychiatry & Psychology, Medical, Science and the Law
• Online Journals: Open Access Journal of Forensic Psychology, Forensic Magazine, Forensic Research
• Databases: British Academy of Forensic Sciences (BAFS), Journal of Digital Forensics, Security and Law (JDFSL)

Ethics

In a literature review, certain ethical issues are to be followed because ethics “incorporate moral principles and best practices” that makes the literature review stronger (Onwuegbuzie & Frels, 2016, p. 37). Therefore, it is imperative that a literature reviewer is an ethical literature reviewer (Onwuegbuzie & Frels, 2016). Some of the best practices include: professional competence, integrity, scholarly responsibility, social responsibility and respect of rights and dignity (Onwuegbuzie & Frels, 2016, p. 38).

Virtue ethics and pragmatic ethics are to inform a good literature review (Onwuegbuzie & Frels, 2016). It is also important as part of virtue ethics to honour the works of others and to ensure that sources are properly referenced.

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References

• Adam, C. D. (2016). Forensic Evidence in Court: Evaluation and Scientific Opinion. Sussex: John Wiley and Sons.
• Butler, J. M. (2012). Advanced Topics in Forensic DNA Typing: Methodology. Waltham: Academic Press.
• Caddy, B., Taylor, G., & Linacre, A. (2008). A review of the science of low template DNS analysis. The Stationary Office.
• Chalk, P. (2013). Encyclopedia of Terrorism, Volume 1. Santa Barbara: ABC-CLIO.
• Caragine, T., Currie, K., & O'Connor, C. (2014). Low Copy Number DNA profiling. In D. Primorac, & M. Schanfield, Forensic DNA Applications: An Interdisciplinary Perspective (pp. 171-188). Broken Sound Parkway: CRC Press.
• Gudjonsson, G. H. (2003). The Psychology of Interrogations and Confessions: A Handbook . Sussex: John Wiley and Sons.
• Krimsky, S., & Simoncelli, T. (2013). Genetic Justice: DNA Data Banks, Criminal Investigations, and Civil Liberties. New York: Colombia University Press.
• Mullin, C. (1997). Error of Judgement: The Truth about the Birmingham Bombings. Poolbeg Press.
• Monsen, E. R., & Horn, L. V. (2008). Research: Successful Approaches. American Dietic Association.
• Onwuegbuzie, A. J., & Frels, R. (2016). Seven Steps to a Comprehensive Literature Review: A Multimodal and Cultural Approach. Londn=on: Sage.
• Sevilla, C., Ochave, J., Punsalan, T., Regala, B., & Uriarte, G. (2007). Reseach Methods. Florentino: Rex Printing Company.
• UNODC. (n.d.). Crime Scene Investigations. Retrieved from unodc.org: https://www.unodc.org/documents/human-trafficking/Toolkit-files/08-58296_tool_5-9.pdf
• Vaus, D., & Vaus, D. (2001). Research Design in Social Research. London: Sage.
• Yin, R. (2009). Case Study Research: Design and Methods, Applied Social Research Methods Series, Volume 5. London: Sage Publications.