Human Rights – Part 5:

Reminder: What are human rights?

If we go back to Part 2, Shestack (1986) described rights as:

“an array of legal relationships. Rights can be seen as entitlements, immunities (from having a legal status altered), privileges and powers (e.g. to create legal relationships)."

Entitlements

Immunities

Privileges

Powers”

Human rights constrain governments to act in a certain way. The government’s behaviour is moderated to the extent that the government ought not (pay attention to these words) breach your rights without lawful authority. The government is also, to a certain extent, a guardian of rights, in that it has ‘agents’ in place to assist the general public to protect and assert their rights, for example, the police, and the judiciary. Keep in mind though, that the responsibility lies with those whose rights are breached to take action, to assert their rights.

The law, like equity, “aids the vigilant, not those who slumber on their rights”.

Human rights are encapsulated in the Universal Declaration of Human Rights (UDHR) but students should keep in mind that rights vary from place to place, culture to culture. One argument against the UDHR is that it encapsulates the ‘Western’ idea of rights and the issue of rights is further complicated in that every individual has an opinion on this topic.

“These views are influenced by upbringing, culture, religion, friends and family, among other factors. The most difficult aspect of freedom has always been that the concept requires us to recognise that other people have ideas that may not align with our own. This tension is demonstrated by movements underway to try and reframe certain civil rights, such as the right to private life as exercised by members of the lesbian, gay, bisexual and transsexual community, as infringements of religious freedom (Michaelson, 2013). The landscape of rights is continually shifting.”

© The Open University, 2014

Given the above then, now is a good time to remind readers/students that this LLB is about law in England and Wales, and therefore considers all topics as the law is currently applied here.

Human rights – torture and terrorism

The topic of terrorism and whether or not torture is permitted against those so accused is a topic that is rife with complications and arguments back and fought. Sadly, the debate usually becomes emotional and intellectual reasoning falls at the wayside all too frequently. When it comes to human rights, the rule of thumb to remember is that rights apply to all not just the one! So think of yourself, your neighbour, your family and what rights apply to them, and then apply those same rights to those accused of terrorism and/any other crime. Keep in mind that The Rule of Law applies in all circumstances.

Keep in mind as I have said before in my post on the Rule of Law: 

State intervention usually means the rule of law can be bent, twisted or downright broken. A case in point is the intervention of the State in Germany that led to Nazism and WW2.

So, we can see that the State has an important role to play in upholding rights and preventing abuse of power, even when involving terrorism and terrorists.

Yet, following major terrorist attacks such as September 11, 2001 (9/11) in the USA and July 7, 2005 (7/7) in London, many states began to take a relaxed approach towards the prohibition of torture. Usually, the explanations given is that the relaxation is in the interests of national security.

Protecting rights is not always easy as it means protecting those who are often despised by society and governments. The UK, for example, has been criticised by civil society organisations for taking a more relaxed approach to the prohibition against torture when dealing with suspected terrorists (Human Rights Watch, 2006).

© The Open University

For a more comprehensive look at how terrorism changed the landscape of human rights, I recommend Chapter 11 of The Rule of Law by Tom Bingham. It is interesting to note that the USA and the UK differed in three ways when dealing with terrorism:

1. The USA treats terrorists as war combatants while the UK treats them as criminals. This makes a great difference in applying the law.
2. The USA Congress passed a Presidential Military Order which authorised detention of suspects at any designated location worldwide with no guarantee of a trial, and if tried, it would be before a military commission where the standards of evidence was lower than applicable in ordinary courts and where the death penalty could be imposed. In contrast Westminster Parliament did not confer any comparative powers on the executive in Britain.
3. The UK courts cannot try a defendant brought into the country by rendition (unlawful seizing of a person in one country in order for him to stand trial in another country) because this is a breach of international law and is regarded as a blatant and extreme failure to adhere to the rule of law. In contrast, the US courts does not care how the defendant appears before it.

Further discussion is outside the scope of this level of the LLB.

Human Rights – torture

What is torture?

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 ("the convention") provides us with the definition:

"any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."

(Article 1 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984)

Article 2(2) goes on to say:

No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.

(Article 2(2) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984)

"No exceptional circumstances whatsoever…" makes it very clear that the right not to be tortured or suffer other cruel, inhuman or degrading treatment or punishment is an absolute right. (See previous post). Again note: just because it is an absolute right does not mean that it never happens! Call it what you like, many of the "enhanced interrogation techniques" of the USA is torture.

As can be seen, the definition of torture is broad and covers a wide range of "treatments". Forms of ill-treatment which have been found to amount to torture, either alone or in combination with other forms of treatment, include:

• Falaka/falanga: beatings on the soles of the feet
• Palestinian hanging: suspension by the arms while these are tied behind the back
• Severe forms of beatings
• Electric shocks
• Rape
• Mock executions
• Being buried alive
• Mock amputations

There are, however, also many ‘grey areas’ which do not clearly amount to torture, or about which there is still disagreement, but which are of great concern to the international community. Examples include:

• Corporal punishment imposed as a judicial penalty
• Some forms of capital punishment and the death-row phenomenon
• Solitary confinement
• Certain aspects of poor prison conditions, particularly if combined
• Disappearances, including their effect on the close relatives of the disappeared person
• Treatment inflicted on a child which might not be considered torture if inflicted on an adult

(Giffard, 2000, pp. 13–14)

(c) The Open University

The prohibition of torture impacts on other legal issues, such as the evidence that can be used during a trial as well as the capacity of states to deport or extradite individuals to other states where they may be at risk of torture. Torture is criminalised by s134 Criminal Justice Act 1988 and the UK is signatory to the convention. The prohibition of torture exists at all levels of legal relations – domestic, national, and supranational.

Next: Torture and terrorism

Introduction to Human Rights – part two

So what are human rights? To answer this I will jump for a moment into W102.

There is no formal definition of human rights – however, "’The jurisprudence of human rights’ (Shestack, 1986)" describe rights as "an array of legal relationships. Rights can be seen as entitlements, immunities (from having a legal status altered), privileges and powers (e.g. to create legal relationships)."

• Entitlements
• Immunities
• Privileges
• Powers

Of the above, can we say if any take precedence over the others? There is no fixed hierarchy of human rights. However, it has been observed that Western countries prioritise civil and political rights over economic and social rights, whereas in Third World and communist countries the reverse is true.

So where do our rights come from? Shestack again identified five sources of rights:

• theology (religion) – from religious texts.
• natural law – based upon "the law of nature", identified in the writings of Aristotle and John Locke.
• Positivism – rights derived from the laws of the state. Writers such as Jeremy Bentham focused on what rights are actually written into the law rather than what ought to be rights.
• Marxism – collective rights (of the society) are given preference as opposed to individual rights.
• The sociological approach – perspectives developed from the rise of social sciences.

The above was included to avoid confusion at this stage, but will be encountered again in W102.
Rights can be broken down into three categories:

1. Absolute Rights – these are rights that may never be breached under any circumstances, even under the conditions of war. For example, the right not to be a slave is an absolute right (‘No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms’ (article 4 ECHR). Note: just because it is an absolute right does not mean that it never happens!
2. Limited rights – these rights have specific limitations built into the rights themselves. For example, ‘Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court’ (Article 5 ECHR).
3. Qualified rights – may be restricted to protect the rights of others or the interests of the public. For example,‘Everyone has the right to freedom of peaceful assembly ... No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society’ (Article 11 ECHR).

Most human rights are qualified rights. They may be restricted only to the extent necessary, and any further restrictions may be challenged by the judicial process.

Human rights may be separated into different categories:

Civil rights – Rights that protect individual liberty and secure equality under the law. These are often viewed as private rights and are in place to ensure dignity.

Political rights – Rights that ensure participation in the political process.
Cultural rights – Rights that ensure cultural identity can be preserved and practised.
Social rights – Rights that ensure equal participation in society.
Economic rights – Rights that concern economic security and independence in the workplace as well as in society.
(C) The Open University

Note: even though I have listed the categories above, does not mean that these rights are in a hierarchy. See paragraph 3. Rights may intersect in different categories as well. Human rights are usually described as being indivisible, interdependent and interrelated. For example, in order to exercise the right to vote an individual also needs basic literacy to read a ballot (right to an education). Additionally, states may create/identify new rights within its legal system.

Next: a discussion on torture.

Introduction to human rights – part one

Reminder: W101 is an introductory course to law. It is designed to introduce legal concepts to students who are entering law for the first time and it does not delve deeply into any single topic at this stage.

Unit 9 deals with human rights.

Learning outcomes

After studying this unit you should be able to:

• discuss the legal foundations of human rights
• explain the different sources of human rights
• demonstrate a basic understanding of the European Convention on Human Rights 1950
• demonstrate a basic understanding of the Human Rights Act 1998
• explain the relationship between the Human Rights Act 1998 and the European Convention on Human Rights 1950
• explain how rights are enforced at different levels.

(c) The Open University.

You may often hear people speaking about their "human rights". What do they mean by this? Would it surprise you to know that often, the people who speak about their human rights, and who argue on grounds of human rights, do not often understand what is a right? Next time someone is in an argument with you, and says something like, "I have a right to…" or "That is against my human rights…", ask the question, "What is a right?" and watch how they fumble for an answer. Hopefully, you will better understand human rights after reading about it here, and be able to explain.

Human rights are very difficult to define. It is easier to recognise a human right, than to say what it is. W101 does not define a right, but rather introduces the concept of human rights by looking at where and how they arise. Before we proceed, let us look at some human rights that may be familiar to you. Keep them in mind as you read along, and see whether or not you can determine when the right was first recognised.

• right to life
• right to education
• freedom of expression
• freedom of assembly and association
• freedom of thought, conscience and religion
• right to marry
• right to respect for your private and family life and home correspondence
• right to free elections
• right to liberty and security
• prohibition against slavery or forced labour
• prohibition against torture
• prohibition against discrimination
• right to a fair trial.

(C) The Open University

Human rights have been recognised historically by philosophers and rulers for centuries. Socrates and Plato have contributed toward recognising human rights by their writings. Chances are you have also heard of the Magna Carta. These are just examples of where rights were recognised within our human history. Just to be clear, it is extremely difficult to pinpoint when in history, human rights were first recognised. It is easier to think of it as an ongoing, developing process. Keep in mind too that the source of human rights is often steeped in controversy.

Modern human rights started after the Second World War. In an effort to avoid the horrors that the war brought about, the United Nations adopted the Universal Declaration of Human Rights (UDHR) on 10 December 1948.

Point to note: human rights apply to everyone! It is a very difficult concept for people to understand and accept that murderers, terrorists, paedophiles and the worst criminals do have the same rights as everyone else.

Human rights are very complex, a combination of natural and legal rights. Natural rights are described as those that we have because we are human, and legal rights are those laid out in law. We have rights that are derived from religious sources, philosophy, et cetera.

To be continued…

Equity–cont’d

This post is a summary of how morality – derived from Christianity – influenced equity.

Why Christianity, you may ask. The answer is very simple. Christianity and the law grew together side-by-side, hand-in-hand over the past several centuries. At the time that the common law was taking root in England, Christianity was already entrenched as the majority religion.

Christian doctrine can arguably be credited with introducing equity’s core characteristic – conscience.

The increasing influence of the church on matters of state following the Norman Conquest in the eleventh century did herald a proliferation of ecclesiastical ideology into many areas of the administration. This included, under the reign of Henry II, an emerging and relatively settled system of common law established in civic courts. Thus, with this proliferation came an emphasis on conscience as one of the central precepts of apostolic thought.

It has been suggested that the office of Chancellor had long been the preserve of church men, notably monks that had first accompanied St Augustine from Rome around the sixth century. Timothy Endicott (1989) suggests that, as chancellors, these men possessed two characteristics that would prove vital to their success in the office. Moreover, they were the same characteristics that would so resolutely inform the judicial role of the Lord Chancellor in the Court of Chancery of later centuries. First, as literate men they were employed to manage the king’s correspondence, his letter-writing and diplomatic affairs. Second, as chaplains they were also keepers of the king’s conscience.

The first practising lawyer to assume the office of Chancellor was Ranulf Flambard (‘the torch’), during the reign of William II, known as William Rufus (1087–1100).

However, it was Thomas à Becket who would cement its legal and political significance by holding the office while also the Archbishop of Canterbury (1161). Thus Becket made Chancery that which ‘set the law of the Church as the standard for the king’s conscience’ (Endicott, 1989, p. 552).

When citizens could not obtain justice at the regular courts (King’s Bench, Common Pleas, Exchequer) – there were a limited number of writs available (we will learn about this later on) – they could petition the king for relief. These petitions were sent to the various Chancellors whose decisions over the next few centuries added to the body of the common law.

It should be noted that up to this point, chancellors were guided by their own individual conscience. However, that changed when Sir Thomas More became Chancellor. More held a series of debates with a fellow lawyer, Christopher St Germain who advocated a more objective and "legal" form of conscience; debates which were later published as Doctor and Student.

This more objective approach resulted in individual conscience being suppressed, and a rise instead of objective "rules" – vague, but rules nevertheless – that represented "conscience". The Judicature Acts of 1873 and 1875 merged or fused equity’s administrative jurisdiction in the Court of Chancery with the common law, thus largely creating the High Court of Justice we know today, and transforming the Court of Chancery into the Chancery Division. For a list of the maxims of equity, see below:

1 Equity sees that as done what ought to be done

2 Equity will not suffer a wrong to be without a remedy

3 Equity delights in equality/Equality is Equity (Aequalitus est quasi equitas)

4 One who seeks equity must do equity

5 Equity aids the vigilant, not those who slumber on their rights

6 Equity imputes an intent to fulfil an obligation

7 Equity acts in personam or persons

8 Equity abhors a forfeiture

9 Equity does not require an idle gesture

10 He who comes into equity must come with clean hands

11 Equity delights to do justice and not by halves

12 Equity will take jurisdiction to avoid a multiplicity of suits

13 Equity follows the law

14 Equity will not assist a volunteer

15 Where equities are equal, the law will prevail

16 Between equal equities the first in order of time shall prevail

17 Equity will not complete an imperfect gift

18 Equity will not allow a statute to be used as a cloak for fraud

19 Equity will not allow a trust to fail for want of a trustee

The above links to Wikipedia, which gives really simple explanations – at this stage. Remember, this is only an introductory law module.

Please remember though that neither this blog nor Wikipedia is suitable for academic referencing.

Equity–cont’d

Continuing where I left off in equity…

As previously mentioned, equality and equity and not the same thing. Let us be clear about this. Return to the previous post on equity, and take a look at the picture – it clarifies the difference quite clearly.

However, there is a clear link between equity and ethics. We may hear this word "ethics" thrown into conversations more and more often as we pursue the path of an LLB. But what is ethics?

The branch of philosophy that investigates morality and, in particular, the varieties of thinking by which human conduct is guided and may be appraised.

(Bullock and Stallybrass, 1977, p. 214)

(C) The Open University

Note that morality and ethics are inextricably intertwined. We will also visit and revisit morality many times in future. But here's a question that may be pertinent at this time: is it possible to have morality without religion?

Background knowledge of ethics is an important part of understanding equity more fully. The interest that ethics has in the study of equity, and a role that can be attributed to equity more generally, is given contextualisation by reference to the work of the philosopher J.L. Mackie, who states that equity can alert us to the degree to which we ought to remain mindful of our actions on behalf of others, as well as checking our own natural inclinations or spontaneous tendencies to act (Mackie, 1990, p. 106).

(C) The Open University

So how does ethics allow us to understand equity? Well, we have to understand that "we ought to remain mindful of our actions" and "our own natural inclinations or spontaneous tendencies" (how we react emotionally), and the effect our actions and emotions have on other people, and how they in turn react to our actions/reactions. When you think about it, every situation that leads to legal action is a result of some form of human interaction in which one party is led to believe that he has been treated unfairly or suffered some form of injustice – keep in mind that this is a form of a failed relationship. This is a very personal feeling, involving at its heart, ordinary people. This is often forgotten when complexities of the law arise.

When we think of equity therefore, we must also think in terms of justice and fairness. But it is not all subjective. After all, what one person may think will "put him right" might not – and often is not – what the other party thinks, or even often the court. So there must be an objective element.

So is it necessary for the law to become involved? The answer would be, "Of course!", if only to interject that objectivity.

Why then do we have equity? While the common law – and statutory legislation – strive to bring certainty to the law, there is no "one size fits all" solution to every single instance of perceived injustice. Equity then is the flexibility that is needed to make the law "bend" sufficiently to fit any situation.

‘Equity cannot remove the force of the law, but it can moderate its impact. Equity does not break rules, but merely bends them’ [Emphasis added.] (Watt, 2012, p. 2)

(C) The Open University

to be continued…

Equity – What is it?

Given what we know about equity so far, how difficult would it be to get a definition? The answer may be surprising, especially if you were to consider the dictionary meaning: "the quality of being fair and impartial". It may surprise you to know that equity does not mean equality (as I had previously mentioned). In law, the real meaning of equity would be something like: "providing for individual needs in such a manner that the individual can live on equal terms with everyone else" (my words). To give you an idea of what I mean take a look at the following picture:

In the above picture, on the left, we can see that even though each person was treated equally, there is still an imbalance. On the right, each person as been treated according to his individual needs, but the result is that each person has equal opportunity (to view the game). To put it another way, equality is giving each person the same resources; equity is giving each person the resources that he or she needs to achieve equality – equity is the road and equality is the destination.

This is how the legal academic Gary Watt introduces ‘equity’:

The word ‘equity’ is used by the ‘haves’ and the ‘have nots’ in quite different ways, but always to denote something they hope to attain or retain. Whether approached from a religious or secular perspective, whether approached from a starting point of poverty or privilege, equity is universally considered to be something desirable, something to aspire to … Equity therefore has the potential to provide a language capable of traversing or filling some fundamental fissures in modern society.

(Watt, 2012, pp. 37–8)

Equality is a very important idea, and one that should be taken seriously. Since the late 1990s the importance of equality has been cemented in law by a number of high-profile pieces of UK government legislation, including the Human Rights Act 1998 and the Equality Act 2010. Yet equality alone cannot provide all the answers. Perhaps, as the image above suggests, when confronted with the novelty of individual needs an alternative method – one that does not rely upon treating everyone as identical – is required to ensure a reasonable chance of justice or fairness being achieved.

Thus, as this brief section has aimed to demonstrate, it is important to be aware of the problems that can and will arise if close attention is not paid to language and the context in which it is used. Where talking about justice, for example, it is not automatically about equality and vice versa. Likewise, equality cannot be automatically exchanged for equity.

© The Open University

In trying to understand equity, we must understand that there are advantages or privileges that exist alongside disadvantages. To achieve equality we must address the imbalances. Consider this: would affirmative action fall under equity, or would it, in its own right, be considered discrimination?

It is worth paying attention to the subjective nature of emotions/feelings, as these play a very important role in whether a person feels he is treated fairly or not. While law has certain objective mechanisms within its structure to help achieve fairness, equity plays a key part in "ensuring a degree of humanity remains within the law". It helps to maintain a degree of balance within the legal system, but there is always that subjective aspect of emotions.

To be continued…

W101 – Equity: introduction

Unit 7 of W101 introduces equity. Equity is a part of the common law and is another source of law as mentioned before. Equity is a queer creature; described as a combination of “philosophy, social justice and legal doctrine and procedure”, equity has a long and rich history. The learning outcomes for this unit are:

Learning outcomes

After studying this unit you should be able to:

• describe equity’s philosophical foundations
• consider equity’s present place and role in the common law jurisdiction of England and Wales
• discuss some of equity’s key areas of intervention within the common law system, e.g. remedies
• describe key historical points in the development of equity
• discuss extra-legal concepts and their relationship to equity, e.g. justice, fairness and conscience.

© The Open University

Equity was described by Aristotle as:

"When the thing is indefinite the rule is also indefinite, like the leaden rule used in making the Lesbian* moulding; the rule adapts itself to the shape of the stone and is not rigid, and so too the decree is adapted to the facts."

*A lesbian rule is a flexible rule used to draw smooth curves.

Photo of a Lesbian rule courtesy http://douglasbgibson.tumblr.com.

In other words, equity is flexible enough to find a solution that fits the problem. We will see how this works during this unit. Keep in mind that equity is both a foundational principle in legal philosophy as well as an ideal of social justice. Given that equity was recognised by Aristotle (384 – 322 BC), we can see that equity goes back more than 20 centuries! Of equity, Aristotle also said:

"Equity bids us be merciful to the weakness of human nature; to think less about the laws than about the man who framed them, and less about what he said than about what he meant; not to consider the actions of the accused so much as his intentions; nor this or that detail so much as the whole story; to ask not what a man is now but what he has always or usually been."

This excerpt demonstrates that equity can be divided into three broad but related categories which together form a starting point for thinking about equity. Equity is:

• a set of philosophical principles
• an ideal form of social justice
• a branch of legal doctrine and procedure.

© The Open University

The most accurate representation of equity in the 21st century is the last of the above – as a form of legal doctrine and procedure – as it follows rules and precedent much as the common law.

Next: what is equity?

Skills 2 - Effective Writing Skills cont’d

In developing effective academic writing skills, a student needs to adopt a ‘formal’ tone of expression. By this, I mean that there should be an objective manner of writing, and that opinions of the writer should not creep into the writing, unless of course, that opinion is asked for. One way of ensuring this is to write without using the ‘first person’ approach, that is, the writer must not use words such as ‘I’ or ‘We’. Neither should the ‘second person’ be used so no words such as ‘You’. Avoid using ‘one’ (as in ‘One must not…’) also.

In essay type answers especially, a good rule of thumb is to have a clear introduction in which the aims of the essay is set out, a brief outline on how you will do this and where you will evidence your answer from. this should be roughly one paragraph and about 10% of the total word count.

Next, the main body of the essay (roughly 80% of your word count) will have the arguments you are presenting, with examples and in-text references. Each paragraph here should cover one point. The beginning sentence should ideally summarise the point being made and the following sentences will expand the argument/point. The last sentence should link to the next paragraph and attempt to link back to the question being asked. It sounds complicated, and it is in the beginning, but time and experience will make it easier. This is one of the reasons why academic writing skills need to be learnt and developed.

The conclusion should introduce NO NEW material, but merely summarise what was argued/presented before, and explain how the question was answered. It should be roughly 10% of the total word count.

Some tips:

• There is a move toward plain, simple English and so Latin phrases are less used now. Some which are still regularly used (like mens rea, ratio decidendi, acteus reus, stare decisis) are written in italics to differentiate from regular text.
• Some words have a specific meaning in law that can’t easily be replaced, and may have a different meaning in everyday speech or writing. Care has to be taken to use in the proper context. A few examples are: bail, precedent, testimony, intention, damages, injunction. There are many more and the OU recommends making a list of such words with the specific legal meaning (sort of like your own legal dictionary) so you don’t have to keep looking them up.
• Write in complete sentences. Each sentence should convey one simple idea, and therefore should not be too long and convoluted.
• Avoid beginning sentences with conjunctions, such as ‘because’, ‘and’, ‘or’, or ‘but’.
• Be grammatically correct. ‘Must of’, ‘should of’, ‘could of’ are not grammatically correct. A common mistake I’ve seen gaining in notoriety is the use of the word ‘drug’ being used as the past tense of ‘drag’. If you need help, type “conjugate x” (where x is the verb you want to use) into Google.
• Pay attention to what you write. Look at this sentence: "Is there some kind of virus going around with symptoms of massive headache and teeth pain?”. My response was: “I didn't know viruses had heads and teeth. Take a photo, they will name it after you and your name will live on in perpetuity.”
• LEARN TO SPELL! This is very common area where a student can lose simple marks. Confusing their/there, principle/principal, practise/practice, advice/advise, tort/taught/thought etc. really isn’t acceptable.
• Punctuate properly. Use punctuation marks to make your writing flow smoother and easier to read. Poor punctuation can change the meaning of the words in a sentence. For example,  “A visit to the site at 2 pm showed that the area was deserted except for a security guard dressed in black and a pitbull.”. I’m still waiting to see what a security guard wearing a pitbull looks like.

Skills 2 – Effective Writing Skills

Effective writing skills are essential in the study of law. Keep in mind the words of Lord Denning:

The reason why words are so important is because words are the vehicle of thought. When you are working out a problem on your own – at your desk or walking home – you think in words, not in symbols or numbers. When you are advising your client – in writing or by word of mouth – you must use words. There is no other means available. To do it convincingly, do it simply and clearly. If others find it difficult to understand you, it will often be because you have not cleared your own mind upon it. Obscurity in thought inexorably leads to obscurity in language.

Clarity of thought leads to clarity of expression. To write well is not only an indication of writing skill, but also an indication of how well you understand what you are writing about. You will need to determine also who you are writing for. A good idea when doing assignments is to pretend that the person you are writing for understands nothing at all about the subject matter, but “is capable of understanding the principles and issues if they are explained clearly and accurately.”

The Open University has a number of free skills courses available, and I suggest that students take advantage of these, especially at the beginning of their studies. One of these courses is “Essay and Report Writing Skills” [click the link for access] and is a short course of 15 hours but is excellent for starting the pathway to developing great writing skills. You can also download the course as an eBook. I use Adobe Digital Editions for reading epubs (OU eBook format) as it preserves the interactive features.

Presentation Style:

When I started the W101, there were quite a few questions from students about how we should write. Most of the questions were based around the presentation of the TMAs, so I will explain how I write my TMAs and why I think it is effective. Note: You do not HAVE to copy my style as long as your TMA is clear and easy to read.

1. I created a template in Microsoft Word that has a header with my name on the left, my Personal Identifier Number (PI) in the middle and the course name eg W101, at the right hand side on one line. Under that, in the middle, I have which TMA it is, eg TMA 01. When I begin using the template, I “SAVE AS” TMA 01, TMA 02 etc., in a folder for that particular assignment (so each TMA is in its own folder) and the template itself is untouched. Only the TMA itself is amended with changes.
2. At the bottom of the page, I insert the page number which helps to arrange in order when printed.
3. I like justifying the body of my writing (as you can probably tell from my blog) as I find it looks much neater. I also use a double line space (court judgments use this style) which makes it easier to read as there is less ‘crowding’ of text on the page. It also allows the tutor to insert comments with ease.
4. DO NOT use fancy colours or headline styles. Use a plain black font, Arial size 12 is the recommended format. Use British English spelling (some users may have US English installed as the default language; this should be changed).
5. DO NOT use abbreviations unless it is an acceptable legal term! So you are not to use “shouldn’t, couldn't, they’re” etc. but you may use PACE if you define it on the first use! So you may write: Police and Criminal Evidence Act 1984 (“PACE”) and thereafter refer to PACE. Putting an abbreviation into brackets and quotation marks shows you are defining it. European Court of Justice (“ECJ”) may thereafter be written as ECJ.
6. Try to minimise the use of quotations – instead, try as far as possible to write in your own words. If you do use quotations, keep it to as few words as possible and reference the source, both in-text and in your reference list!

Formality:

Legal writing is relatively formal and uses language in an accurate and precise way. However, it is important to resist the temptation to be too formal. It is not necessary to copy the rather archaic language in the older law reports; words such as ‘aforesaid’, ‘pursuant to’, and ‘hereafter’ should be avoided. Avoid being pompous or pretentious.

There is a move towards the plain use of English in law: it is important not to complicate your language unnecessarily for effect when a simple word or explanation will do.

Avoid:

• the use of slang and colloquialisms, such as ‘he was nicked by the old bill’, or ‘when she was off her head she set fire to the house’
• ‘text speak’ – the language of text messages
• lists and bullet points.

© The Open University

To be continued…

Skills 2 – Personal Development Planning

Skills 2 is a unit presented in Week 11 of W101.

Learning outcomes

After studying this unit you should be able to:

• understand your progress so far and understand Personal Development Planning
• understand the need for, and nature of, effective writing skills for law
• understand the use of legal language and vocabulary
• understand the use of grammar, punctuation and spelling
• understand the use of a legal database to find statute and case law.

© The Open University

Keep in mind that these skills are built upon each other, so that they should be treated as a continuous learning process, rather than individual ‘lessons’. In other words, you should be using these throughout your study. Don’t worry too much though, you will eventually become unaware that you are actually using them as they become more familiar and part of your study habits. The skills of reading, note-taking and summarising are integral and essential to any field of study, including law.

Personal Development Planning

At this stage in the OU W101, you should have submitted a TMA (tutor marked assignment) and received feedback from your tutor. I had mentioned before that the initial feedback from tutors might be a bit uncomfortable because you are forced to face some negative aspects of your performance. Keep in mind that tutors are not making personal statements about you, but rather they are trying to critique (not criticise!) your work. You may find comments on content (and the relevance of what you wrote to what the question was asking), identifying the correct material, writing style including grammar and spelling, referencing, presenting information concisely and accurately, making appropriate use of legal terminology and examples (remember when using examples to clearly state what the relevance is to the topic), et cetera. If all this seems a bit much at the moment, don't worry because the types of comments that are included in your feedback are designed to help you, and will be referenced to the appropriate part of your work.

More importantly, each TMA is designed so that the student can give some personal feedback on their own performance. In other words, you may have to answer questions such as: "Outline two things that you think you could improve when preparing for TMA 02 and give reasons why."

This forces you to think about your own self study, and a good student will think of all aspects of study, not just areas that help to complete answering the question(s). Therefore you are forced to examine things such as time management, understanding of the material, appropriateness and relevance to the questions, choosing examples, writing skills, referencing et cetera. And as mentioned before, some of your discoveries about yourself might not be too comfortable to admit such as (and this is just an example) browsing the Internet or being on Facebook instead of studying.

PDP aims to improve your capacity to learn and to ensure that you review, plan and take responsibility for your own learning. It is an active and continuous process of self-appraisal, review and planning. It should enable you to:

• become a more effective, independent and confident learner
• improve your generic and legal study skills
• identify your goals and evaluate your progress towards them.

The PDP Cycle © The Open University

The important lesson here is that your tutor is not making personal attacks on you, and you have to take responsibility for your own learning.

W101 Skills 1 – Reading and Understanding Case Law

© The Open University

Note that the person bringing a claim in civil court is now called the “claimant”; before 1999 the person was called the “plaintiff”. The person defending the claim is now called the “respondent”. A person appealing a decision of a lower court is called the “appellant”. See the Supreme Court’s decisions webpage for examples.

Remember too, the case is known by the names of the parties e.g. Smith v Jones which is read as Smith and Jones. NOT Smith versus Jones. In a criminal case, the case R v Jones is read as R against Jones (where R signifies the Crown – Rex if the Monarch is male and Regina if the Monarch is female).

W101 Skills – 1: How to read legislation

© The Open University

Remember that legislation is also known as statute or written law or Acts of Parliament. There is a standard format used in presenting Acts of Parliament, as shown in the picture above. Most statutes show:

• parts – each part deals with a different aspect. Each part is divided into:
  • sections – abbreviated as s (singular) and ss (plural). Sections lay out the actual provisions of the Act and are further sub-divided into:
    • sub-sections – abbreviated as sub-s (singular) and sub-ss (plural) and further sub-divided into:
      • paragraphs – abbreviated as para (singular) or paras (plural) and further sub-divided into:
        • subparagraphs – abbreviated as sub-para (singular) or sub-paras (plural).

At the end of the statute there will often be schedules and these are numerically divided. They relate to the sections of the Act and usually deal with the detail referred to from the sections. They cannot create anything new that is not contained in the main body of the Act.

© The Open University

A great resource for lawyers and law students is the Parliament webpage (upcoming and new legislation) and the Government’s official legislation webpage, where one can find most of the statutes that are in effect (and all from 1988).

Here is a PDF file with more details on how to read statutes, from the Georgetown University Law Centre. You can also view a video here from Oxford University Press which explains Acts of Parliament and also how to read them.

W101 Skills – 1 cont’d

Summary or précis

A summary or précis is a shortened version of an original written piece of work, but which retains the key elements of the original. It is an important skill in academic studying but is also a skill that is used daily in almost all fields of employment. It is therefore, a transferable skill. An accurate summary not only helps to identify the important elements of what you are reading, but like note-taking, it helps to retain what you read, and can make revision easier and quicker than re-reading the longer original piece.

There are two important things to remember when making a summary:

• Identify the key elements – this is obviously a skill that needs to be developed.
• Write in your own words – this helps to clarify ideas and arguments present in the original work, and aids in your own comprehension, and writing skills.

As Lord Denning (Former Master of the Rolls) said (in The Discipline of Law):

To succeed in the profession of the law, you must seek to cultivate command of language. Words are the lawyer’s tools of trade. When you are called upon to address a judge, it is your words which count most. It is by them that you will hope to persuade the judge of the rightness of your cause. When you have to interpret a section in a Statute or a paragraph in a Regulation, you have to study the very words. You have to discover the meaning by analysing the words – one by one – to the very last syllable. When you have to draw up a will or a contract, you have to choose your words well. You have to look into the future – envisage all the contingencies that may come to pass – and then use words to provide for them. On the words you use, your client’s future may depend.

The reason why words are so important is because words are the vehicle of thought. When you are working out a problem on your own – at your desk or walking home – you think in words, not in symbols or numbers. When you are advising your client – in writing or by word of mouth – you must use words. There is no other means available. To do it convincingly, do it simply and clearly. If others find it difficult to understand you, it will often be because you have not cleared your own mind upon it. Obscurity in thought inexorably leads to obscurity in language.

Sometimes you may fail – without your fault – to make yourself clear. It may be because of the infirmity of the words themselves. They may be inadequate to express the meaning which you wish to convey. They may lack the necessary precision. ‘Day’ and ‘Night’ are clear enough at most times. But when does day begin and night end? Some may say at sunrise. Others would say at dawn. Then when does ‘dawn’ begin? No one can tell exactly. Or a word may mean one thing to one person and another thing to another. Take ‘punctual payment’ or ‘prompt payment’. To one it may mean immediate payment. To another it may permit of a little latitude and it may suffice if payment is made within a day or two. The difference between the two will remain unless it is settled by the House of Lords. Yet again the word may mean one thing in one context and another thing in another context. Thus ‘money’ may be limited to the money in your purse and cash at bank or it may include money owing to you for dividends and rents. Yet again a word may mean one thing in one situation and another in another. Take the words ‘insulting behaviour’. Blowing a whistle on the Centre Court at Wimbledon may be ‘insulting behaviour’; but blowing it at the Cup Final at Wembley would not. It depends on the meaning which you yourself choose to give ‘insulting’. The difference is not to be settled by authority, but by individual choice. Constantly you will find ordinary people giving different meanings to the same word. This gives full scope to the lawyer.

(Denning, 1979, pp. 5–6)

As I have said before, I am an advocate for writing plainly and as simply and as precisely as possible. As Mark Twain said, a writer should follow some ‘little rules’:

• Say what he is proposing to say, not merely come near it.
• Use the right word, not its second cousin.
• Eschew surplusage.
• Not omit necessary details.
• Avoid slovenliness of form.
• Use good grammar.
• Employ a simple and straightforward style.

[Note: I’m constantly learning, so don’t take me to task for any ‘mistakes’ you find.]

So, to summarise: Words are important, and building skills in how you use words is essential for any law student.

W101 Skills – 1

The online Open University law module W101 has some skills lessons built in, interspersed at intervals to aid the student in recognising and developing the necessary skills that are so important, both as a student and future lawyer. Some of the skills may seem obvious, some not so much. For example, the learning outcomes for Skills 1 are:

Learning outcomes

After studying this unit you should be able to:

• review your progress so far
• develop the skills of reading, note-taking and summarising
• know how to find your way around a statute
• know how to find your way around a case.

© The Open University

So, reading, note-taking and summarising may seem to be very obvious skills… but, these are not just the pleasurable, ‘normal’ way we might read the latest John Grisham novel, or the daily newspaper. For academic purposes, these skills have to be developed and used in an effective manner. They are part of your cognitive development. You, the student, need to learn how to identify what is relevant, what is not, how to identify facts and apply principles to those facts.

About the hardest part of your development (at least it was for me) is the self-analysis, the idea of being totally honest with yourself, and avoid making excuses. Did you use your time effectively? Were you able to do more hours of study than you actually did? Did you really have to eat that last muffin? Okay, I threw that in to see if you were paying attention.

Activity 1:

This activity gets you to think about the first weeks of study on W101 and ask yourself some questions. You may wish to make some notes as you respond to these questions:

• What did you find to be the easiest aspect of your study so far?
• What did you find to be the hardest aspect of your study so far?
• Which aspects of your study did you do well at?
• Which aspects of your study need improving?
• What can you do to improve and develop your learning?
• Was your time management efficient and can you do anything to improve it for the future?

© The Open University

An average person is ready to be honest about their strengths, but can you face up to your weaknesses? You will encounter a lot of this when you have to give feedback on your assignments and it will be uncomfortable, to say the least. Can you be completely honest with yourself, and your tutor, in answering the above questions? You can do a personal SWOT Analysis to determine your strengths, weaknesses, opportunities (for improvement) and threats (to your improvement).

Reading Skills:

There are different ways to read. The type of reading we do depends on the material we are reading and the purpose for which we are reading.

• Reading for gist – if we are reading to understand what the text is about, or to see if it is relevant for our needs, we may skim read, and this applies to a newspaper, a report or an academic article. We may also scan the text to get the general idea and to identify exactly what we need to know.

• Reading to gain a full understanding – if we are reading in order to gain a full understanding of something technical or complex, we tend to take our time. We may read the text through once quickly, to get the general idea, and then go back over it more carefully. We may take notes of the things we find difficult to understand, which we think are important, which we need to clarify later, or which we disagree with.

• Reading to reformulate – this type of reading aims to identify the main points of a text to enable you to make your own notes. This is important as it enables you to condense a lot of material.

© The Open University

A useful strategy in reading is known as SQ3R… Survey-Question-Read-Recite (or Recall)-Review. Click on the link for a PDF summary and description.

Effective Note-taking:

A person reading for academic study is advised to take notes, not only to help in digesting the material, but also to help summarise and clarify the ideas. “Taking notes forces you to think about the ideas in the text as you read it, because you have to decide what to write down and how to phrase it. As you write down the notes you are pressed into finding some sense in the words in the text. If you read without taking notes, no matter how good your memory is, you will find that the ideas gradually drift away from you.” It also helps if you rewrite in your own words so that avoiding plagiarism becomes automatic.

There are several different techniques for note-taking:

• Marking or annotating the text was signalled as a key activity when reading and it forms the beginning of note-taking – it highlights the relevant sections so that they are easier to find.
• Linear notes: this is the most common form of note-taking. It involves writing in sequence the points that you want to note. The aim is to pick out the relevant points.
• Mind maps: when making a mind map, you generally put the central topic in the middle of the page and then arrange the different aspects of the topic around it. However, you can give free rein to your creativity with mind maps. There are no hard and fast rules. Mind maps give you a clear visual representation of the relationship between points or ideas and many people find that the effort that they put into constructing a mind map is enough to fix the information in their memory.

© The Open University

One mistake students make when making annotations is to underline or mark almost everything on the page. However, the OU has a nifty little guide here on note-taking. It’s part of an on-going skills section on the OU website. Learning to identify and annotate what is important and necessary is an essential skill.

To be continued…

Doctrine of Precedent–cont’d

There are several more things that we need to know about the Doctrine of Precedent. We have already learnt that higher courts bind lower courts with their judgments. The reasoning behind these judgements are important since they formulate the principles upon which the precedent lies. The reason is known as ratio decidendi (the reason for the decision) although you may see it referred to as simply "ratio".

It must be pointed out that in any decision (as you can see in the previous post where I had posted a decision from the Supreme Court), the ratio is not clearly identified – there is no fixed section marked as ratio or ratio decidendi. It is upon reading the entire judgment that other judges can identify the ratio and the principles contained therein.

The judgment may also say other things "in passing" and this is known as orbiter dictum. While the ratio is binding, the orbiter is not. But it is considered persuasive. "In a court opinion, obiter dicta include, but are not limited to, words "introduced by way of illustration, or analogy or argument"".

* Typically, you will see the spelling of judgment without the "E" before the "M". While judgment (without the "E") and judgement (with the "E") are both correct spellings, in law it is usual and more common to use the former spelling. Therefore if you constantly use the spelling as you see it here – judgment – you will never be wrong.

Reading case law and terminology:

"The final part of this unit will use some terminology specific to reading case law. You will become familiar with these terms and their meanings while dealing with your skills materials. However, it is important to understand the terminology when you are dealing with the subject matter too. Here is a brief explanation of some of the terms used.

Affirmed – this term is used when an appeal court agrees with the earlier decision made by the lower court.

Applied – this term is used when a court finds itself bound by an earlier precedent and has applied the earlier case and reasoning to a subsequent case.

Approved – this is used when a superior court agrees with a lower court’s decision.

Considered – when a court has considered a case but not applied it to the case in question, the court uses this phrase to demonstrate that they have considered it but it has not been applied.

Distinguished – this phrase is used when a court is bound by a previous decision but does not wish to apply it in this instance. The court will find some differences which will allow them not to follow a particular case.

Overruled – this phrase is used when a court of equal or superior status rejects a decision of a court and applies a new decision.

Reversed – this is the opposite of affirmed. This phrase is used when a higher court has decided that a lower court came to the wrong decision."

© The Open University, 2014

Keep in mind that in 1966 (as we saw in the last post, paragraph 7 of the judgment) the House of Lords issued Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 in which the House of Lords departed from the former convention of binding itself. This is the text:

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, settlement 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.

Next, I will write on the skills units 1 and 2.

Doctrine of Precedence

Stare Decisis (Latin for: "stand by that decided", or to give it the full name: Stare decisis et non quieta movere: "to stand by decisions and not disturb the undisturbed."), doctrine of precedence and judicial precedent; all are different terms meaning the same thing… That judges and magistrates are required to follow the rulings and determinations set by higher courts when a case involves similar sets of facts and issues. This gives a measure of consistency and standardisation and predictability.

When a case comes before the court, there are several steps which a judge takes into his consideration. These are:

• Ascertain the facts by hearing from all parties, witnesses and reviewing evidence.
• Locate and review legislation that may be relevant and interpret the legislation, if necessary.
• Locate and review previous rulings, similar cases and precedents that may be relevant.
• Ascertain whether these precedents may apply to the case and its facts. If so, apply the precedent as previously defined.
• If no precedent applies to the case and its specifics – make a ruling that establishes a new precedent.
• Include in the judgement a ratio decendi, providing legal reasons for the judgement.
[http://lawgovpol.com/doctrine-of-precedent/]

It is important to note that in order for this doctrine to work effectively, the hierarchy of the courts is critical. Here is a simple printout of the hierarchy in England and Wales. Remember that Scotland has a slightly different legal system. Additionally, remember that in England and Wales when we speak of courts, we also have to include tribunals. They have a separate hierarchy. For a more complete picture of the hierarchy of courts, see this link.

On 26 July 2016, the Supreme Court of the United Kingdom ("SC") gave a decision in the case of Willers (Appellant) v Joyce and another [2016] 3 WLR 534, in which the issue of precedence was discussed at length. This issue was of such importance that all nine judges heard this case. Typically, a case at the Supreme Court is heard by five judges, or if important, seven. For all nine judges to sit the case is of extreme importance in deciding some area of law.

The issue in this case was to decide when precedent applies from the Judicial Committee of the Privy Council (which is also a superior court, but for British territories) to courts of the United Kingdom. I will let the words of this decision speak for themselves.

4.                   In a common law system, where the law is in some areas made, and the law is in virtually all areas developed, by judges, the doctrine of precedent, or as it is sometimes known stare decisis, is fundamental. Decisions on points of law by more senior courts have to be accepted by more junior courts. Otherwise, the law becomes anarchic, and it loses coherence clarity and predictability. Cross and Harris in in their instructive Precedent in English Law 4th ed (1991), p 11, rightly refer to the “highly centralised nature of the hierarchy” of the courts of England and Wales, and the doctrine of precedent is a natural and necessary ingredient, or consequence, of that hierarchy.

5.                   The doctrine is, of course, seen in its simplest and most familiar form when applied to the hierarchy of courts. On issues of law, (i) Circuit Judges are bound by decisions of High Court Judges, the Court of Appeal and the Supreme Court, (ii) High Court Judges are bound by decisions of the Court of Appeal and the Supreme Court, and (iii) the Court of Appeal is bound by decisions of the Supreme Court. (The rule that a Circuit Judge is bound by a decision of a High Court Judge is most clear from a “Note” included at the end of the judgment in Howard De Walden Estates Ltd v Aggio [2008] Ch 26).

6.                   The position is rather more nuanced when it comes to courts of co-ordinate jurisdiction.

7.                   Until 50 years ago, the House of Lords used to be bound by its previous decisions - see eg London Tramways Co Ltd v London County Council [1898] AC 375. However, that changed in 1966 following the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234, which emphasised that, while the Law Lords would regard their earlier decisions as “normally binding”, they would depart from them “when it appears right to do so”. The importance of consistency in the law was emphasised by Lord Wilberforce in Fitzleet Estates Ltd v Cherry [1977] 1 WLR 1345, 1349, when he explained that the Practice Statement should not be invoked to depart from an earlier decision, merely because a subsequent committee of Law Lords take a different view of the law: there has to be something more. Having said that, the Practice Statement has been invoked on a number of occasions in the past half-century, most recently in Knauer v Ministry of Justice [2016] 2 WLR 672, where, at paras 21-23 it was emphasised that, because of the importance of the role of precedent and the need for certainty and consistency in the law, the Supreme Court “should be very circumspect before accepting an invitation to invoke the 1966 Practice Statement”.

8.                   The Court of Appeal is bound by its own previous decisions, subject to limited exceptions. The principles were set out by the Court of Appeal in a well-known passage (which was approved by the House of Lords in Davis v Johnson [1979] AC 264) in Young v Bristol Aeroplane Co Ltd [1944] KB 718, 729-730:

“[The Court of Appeal] is bound to follow previous decisions of its own as well as those of courts of co-ordinate jurisdiction. The only exceptions to this rule … are … (1) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow. (2) The court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords. (3) The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam.”

9.                   So far as the High Court is concerned, puisne judges are not technically bound by decisions of their peers, but they should generally follow a decision of a court of co-ordinate jurisdiction unless there is a powerful reason for not doing so. And, where a first instance judge is faced with a point on which there are two previous inconsistent decisions from judges of co-ordinate jurisdiction, then the second of those decisions should be followed in the absence of cogent reasons to the contrary: see Patel v Secretary of State for the Home Department [2013] 1 WLR 63, para 59. I would have thought that Circuit Judges should adopt much the same approach to decisions of other Circuit Judges.

10.              The question to be addressed in this appeal is the effect of decisions of the JCPC. Although the function of the JCPC has varied somewhat since its creation by the Judicial Committee Act 1833, this case is concerned with its function as the final appellate court for a number of Commonwealth countries, the 14 British Overseas Territories, the Channel Islands and the Isle of Man. In that capacity, the JCPC advises the monarch on the disposal of appeals or (in the case of republics) determines the disposal of appeals. Accordingly, the JCPC is not a court of any part of the United Kingdom.

11.              Having said that, the JCPC almost always applies the common law, and either all or four of the five Privy Counsellors who normally sit on any appeal will almost always be Justices of the Supreme Court. This reflects the position as it has been for more than 100 years, following the Appellate Jurisdiction Act 1876, which created the Lords of Appeal in Ordinary (ie the Law Lords), who thereafter constituted the majority of the Privy Counsellors who sat in the JCPC, until the creation of the Supreme Court in October 2009.

12.              Three consequences have been held to follow from this analysis, at least as a matter of logic. First, given that the JCPC is not a UK court at all, decisions of the JCPC cannot be binding on any judge of England and Wales, and, in particular, cannot override any decision of a court of England and Wales (let alone a decision of the Supreme Court or the Law Lords) which would otherwise represent a precedent which was binding on that judge. Secondly, given the identity of the Privy Counsellors who sit on the JCPC and the fact that they apply the common law, any decision of the JCPC, at least on a common law issue, should, subject always to the first point, normally be regarded by any Judge of England and Wales, and indeed any Justice of the Supreme Court, as being of great weight and persuasive value. Thirdly, the JCPC should regard itself as bound by any decision of the House of Lords or the Supreme Court - at least when applying the law of England and Wales. That last qualification is important: in some JCPC jurisdictions, the applicable common law is that of England and Wales, whereas in other JCPC jurisdictions, the common law is local common law, which will often be, but is by no means always necessarily, identical to that of England and Wales.

13.              In Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1986] AC 80, 108, Lord Scarman, giving the advice of the JCPC said “[o]nce it is accepted … that the applicable law is English”, the JCPC “will follow a House of Lords decision which covers the point in issue”. As he explained, the JCPC “is not the final judicial authority for the determination of English law. That is the responsibility of the House of Lords in its judicial capacity”. On the other hand, when the issue to be determined by the JCPC is not a point of English law, the JCPC is not automatically bound by a decision of the Law Lords (or the Supreme Court) even if the point at issue is one of common law, not least because the common law can develop in different ways in different jurisdictions (although it is highly desirable that all common law judges generally try and march together). This is well illustrated by the decision of the JCPC in the Hong Kong case of Mercedes-Benz AG v Leiduck [1996] AC 284, where the majority refused to follow the House of Lords decision in The Siskina [1979] AC 210.

14.              In In re Spectrum Plus Ltd (In liquidation) [2005] 2 AC 680, the House of Lords had to consider a point on which the Court of Appeal had expressed one view in two cases (Siebe Gorman & Co Ltd v Barclays Bank Ltd [1979] 2 Lloyds Rep 142 and In re New Bullas Trading Ltd [1994] 1 BCLC 485), and the JCPC had expressed the opposite view in a subsequent New Zealand appeal (Agnew v Comr of Inland Revenue [2001] 2 AC 710). In Spectrum Plus at first instance, the trial judge followed the JCPC decision, but the Court of Appeal held that he has been wrong to do so, as he was bound by the earlier Court of Appeal decisions, and they reversed him on the ground that they were equally bound.

15.              Although the House of Lords reinstated the trial judge’s decision, in Spectrum Plus and overruled the Court of Appeal decisions in Siebe Gorman v Barclays and in New Bullas, the majority of the Law Lords made it clear that the trial judge was wrong in not regarding himself as bound by those decisions and in treating himself as entitled to follow the more recent decision of the JCPC. Thus, at para 93, Lord Scott said that the Court of Appeal had “correctly” said that the trial judge’s “test was in conflict with the Court of Appeal’s decision in In re New Bullas … and concluded that the rules of binding precedent enabled neither [the judge] nor a subsequent Court of Appeal to rule that that case had been wrongly decided”. Lord Walker expressed himself more elliptically at para 153, where he said that the trial judge “was correct on every point in his judgment except one, which does not present any obstacle to your Lordships (that is as to the relative authority as precedents of the New Bullas and Agnew cases)”. Lord Nicholls, Lord Steyn and Lord Brown agreed with the opinions of both Lord Scott and Lord Walker.

16.              There is no doubt that, unless there is a decision of a superior court to the contrary effect, a court in England and Wales can normally be expected to follow a decision of the JCPC, but there is no question of it being bound to do so as a matter of precedent. There is also no doubt that a court should not, at least normally, follow a decision of the JCPC, if it is inconsistent with the decision of a court which is binding in accordance with the principles set out in paras 5, 8 and 9 above.

17.              The difficult question is whether this latter rule is absolute, or whether it is subject to the qualification that it can be disapplied where a first instance judge or the Court of Appeal considers that it is a foregone conclusion that the view taken by the JCPC will be accepted by the Court of Appeal or Supreme Court (as the case may be). There are decisions of the Court of Appeal which support such an approach - see eg Doughty v Turner Manufacturing Co Ltd [1964] 1 QB 518 in the civil field and R v James and Karimi [2006] QB 588 in the criminal field (both of which are well-established authorities which I am not calling into question). Nonetheless, I have concluded that it is more satisfactory if, subject to one important qualification which I deal with in paras 19 and 20 below, the rule is absolute - ie that a judge should never follow a decision of the JCPC, if it is inconsistent with the decision of a court which is otherwise binding on him or her in accordance with the principles set out in paras 5, 8 and 9 above.

18.              First, particularly given the importance of the doctrine of precedence and “highly centralised nature of the hierarchy” of the courts of England and Wales, the doctrine should be clear in its terms and simple in its application. Secondly, as the very careful judgment of Ms Tipples QC in the present case shows, there can be much argument and difference of opinion as to whether it is “a foregone conclusion” that the Court of Appeal or Supreme Court will follow a particular JCPC decision which is inconsistent with an earlier decision of the domestic court. If there is a strict rule, there need be no such argument. Thirdly, even apart from this second point, there should be no more delay or cost in having a strict and clear rule rather than a more flexible rule. Thus, if the first instance judge follows the decision of a superior court in this jurisdiction, she can grant a “leapfrog certificate”, and, if it is appropriate, the Supreme Court can then decide to consider the issue directly. It is hard to see why, if such a course is appropriate, it would be beneficial in terms of time or costs for the issue to be considered by the Court of Appeal. Having said that, there may well be case where the Supreme Court will consider that it would benefit from the views of the Court of Appeal, and in such a case it can refuse to entertain the appeal pursuant to the certificate.

19.              Having said that, I would adopt a suggestion made by Lord Toulson which may, in terms of strict logic, be inconsistent with the above analysis, but which is plainly sensible in practice and justified by experience (and is therefore consistent with Oliver Wendell Holmes’s view of the common law). There will be appeals to the JCPC where a party wishes to challenge the correctness of an earlier decision of the House of Lords or the Supreme Court, or of the Court of Appeal on a point of English law, and where the JCPC decides that the House of Lords or Supreme Court, or, as the case may be, the Court of Appeal, was wrong. It would plainly be unfortunate in practical terms if, in such circumstances, the JCPC could never effectively decide that courts of England and Wales should follow the JCPC decision rather than the earlier decision of the House of Lords or Supreme Court, or of the Court of Appeal. In my view, the way to reconcile this practical concern with the principled approach identified in paras 17 and 18 above is to take advantage of the fact that the President of the JCPC is the same person as the President of the Supreme Court, and the fact that panels of the JCPC normally consist of Justices of the Supreme Court.

20.              The JCPC’s current Practice Direction, in JCPC PD 3.1.3 and 4.2.2, already requires an applicant, or an appellant, to say whether an application for permission to appeal, or an appeal, will involve inviting the JCPC to depart from a decision of the House of Lords or the Supreme Court (and to give particulars). This should be expanded to apply to decisions of the Court of Appeal of England and Wales.

21.              In any case where the Practice Direction applies, I would hold that the following procedure should apply from now on. The registrar of the JCPC will draw the attention of the President of the JCPC to the fact there may be such an invitation. The President can then take that fact into account when deciding on the constitution and size of the panel which is to hear the appeal, and, provided that the point at issue is one of English law, the members of that panel can, if they think it appropriate, not only decide that the earlier decision of the House of Lords or Supreme Court, or of the Court of Appeal, was wrong, but also can expressly direct that domestic courts should treat the decision of the JCPC as representing the law of England and Wales. This is, I accept a modification of the observations of Lord Scarman giving the judgment of the Board in Tai Hing. However, it seems to me to be not only convenient but also sensible that the JCPC, which normally consists of the same judges as the Supreme Court, should, when applying English law, be capable of departing from an earlier decision of the Supreme Court or House of Lords to the same extent and with the same effect as the Supreme Court.

22.              I have not referred to the position in the courts of Scotland or of Northern Ireland, which were (understandably) not discussed in argument, but, at least as at present advised, the position would seem to me to be as follows. The traditional view in Scotland has been that, subject to some possible exceptions, judgments of the House of Lords in English appeals are at most highly persuasive rather than strictly binding, and I find it impossible to see how decisions of the JCPC on English law can have greater authority than that. As for Northern Ireland, given that the common law applies in the same way as it does in England and Wales, I would have thought that precisely the same principles should apply as they do in England and Wales.

Of course, this judgement has gone further into depth than is required at this level, but I wanted to indicate this most recent judgement and how important it is.