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Lord Gardiner was serving as Lord High Chancellor of Great Britain when he introduced the Practice Statement (1966) in the House of Lords. Gardiner was a keen reformer and set up the Law Commission in 1965. He campaigned for the abolition of capital punishment whilst he was a lawyer. His statement, made on July 26, 1966, on behalf of himself and the Lords of Appeal in ordinary, stated that they would depart from precedent in the Lords in order to achieve justice.
The House of Lords was replaced by the Supreme Court from 1st October 2009. The Supreme Court has not re-issued the House of Lords' Practice Statement stating that The Practice Statement is "part of the established jurisprudence relating to the conduct of appeals". Practice Directions 3 & 4 along with the case of Austin v Southwark LBC in 2010 confirm the continued application of the Practice Statement in the UKSC.
Prior to 1966 and the Practice Statement the House of Lords considered that it was bound to follow its own previous decisions (stare decisis) even if it caused hardship or appeared unfair as in the case of London Street Tramways Co Ltd v London CC (1898). This case concerned the price the LCC should pay for parts of the tramways. Lord Halsbury, L.C., stated: “… I am prepared to say that I adhere in terms to what has been said [by other Law Lords] that a decision of this House once given upon a point of law is conclusive upon this House afterwards, and that it is impossible to raise that question again as if it [had never been decided] and could be reargued, and so the House be asked to reverse its own decision. That is a principle which has been, I believe, without any real decision to the contrary, established now for some centuries, and I am therefore of opinion that in this case it is not competent for us to rehear and for counsel to re argue a question which has been recently decided.”
The House preferred the view that certainty was more important than the problem of incurring individual hardship through having to follow a past decision. It described 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:"
The House adhered to this principle from 1898 to 1966 and only allowed itself to deviate from this stance if the past decision had been made per incuriam i.e. in error. As a result there existed no mechanism whereby 'wrongs' could be put right. Before 1898 the House of Lords was free to overrule its own previous decision.
The Practice Statement proposed to make changes to allow the House of Lords to depart from its previous decisions when 'it appears to be right to do so'. This reflected the view that the House was being too inflexible and, according to the words in the Practice Statement, 'too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law'. The House respected the value of precedent in that it provided an important 'foundation upon which to decide what is the law and its application to individual cases' but recognised that the law needed to develop if it was to meet changing social conditions and opinion. The Practice Statement gave the House of Lords more flexibility but was only to be used sparingly so as to avoid uncertainty.
The use of the Statement was to be subject to limitations from the start and recognised '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.'
The Statement stated quite clearly that the announcement was 'not intended to affect the use of precedent elsewhere than in this House.' It was very distinctly aimed at the House of Lords which was the highest court in the land at that time.
Before 1966 the House of Lords was obliged to use the principle of stare decisis which meant that judges had to abide by previous precedents which had been established by former decisions. The House of Lords realised the benefit of the certainty of previous rulings but also wanted to ensure that this did not create 'injustice' or 'unduly restrict(s) the proper development of the law' The alternative would have been to create new legislation to overrule any binding precedent.
The first time the Practice Statement was used was in Conway v Rimmer (1968) when an ex police officer sought the disclosure of some police files when he claimed he had been wrongfully prosecuted. The Home Secretary claimed public interest immunity for all such files. The House of Lords used the Statement to remove this presumption and reviewed the decision in Duncan v Cammell Laird & Co Ltd (Discovery) (1942). They ruled that it was for the court to examine the documents and they would order disclosure if it was agreed that the public interest in the administration of justice was greater than the public interest in confidentiality. The House of Lords overruled the decision in Duncan v Cammell Laird & Co (1942) despite the similarity in the two cases. Importantly, the decision in 1942 was made at a time when the country was at war whereas in 1968 there was no war.
In British Railways Board v Herrington (1972), the House of Lords overruled, or at least, modified, Robert Addie & Sons (Collieries) Ltd v Dumbreck (1929). In Addie, the House of Lords had held that an occupier of premises was only liable to a trespassing child who was injured by the occupier intentionally or recklessly. In the 1972 case of British Railways Board v Herrington, a six year old boy had walked on to the railway line and had been severely injured by the electrified track. British Railways Board claimed that they were not liable as the child was a trespasser and they did not owe him a duty of care and they had not 'shown any reckless disregard for his presence on the track'. In Herrington, their Lordships held that a more responsible approach was appropriate in the changed social conditions since 1929 and that even a trespasser was entitled to some extent of care or 'common humanity'. The Lords felt that there was more likelihood that children would be tempted to trespass and occupiers needed to protect children, even if they were trespassers, from dangerous situations. The House advanced the test of 'common humanity' which involved the question of whether the occupier has done all that a humane person would have done to protect the safety of the trespasser.
As social outlooks have changed the Lords have had to make changes. In R v R (1991), the law regarding marital rape was changed and from 1992 it has been possible to charge a man with the rape of his wife. At this time Lord Keith said "This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it"
In Pepper v Hart , the House of Lords allowed the use of Hansard as an extrinsic aid to the interpretation of statutes subject to certain conditions. Hansard was consulted with regard to parliamentary discussions recording the rate of tax payable on school fees thus overruling Davis v Johnson (1978) when Lord Kilbrandon said "It has always been a well established and salutary rule that Hansard can never be referred to by counsel in court and therefore can never be relied on by the court in construing a statute or for any other purpose." The decision to allow the use of Hansard meant that their Lordships had declined to follow dicta in three of their earlier decisions.
There are restrictions to the use of the Practice Statement and in Jones v Secretary of State for Social Services (1972) Lord Reid said, 'the Practice Statement........ should be applied sparingly and should only rarely be invoked in cases of the construction of statutes or other documents.' In this instance the Lords refused to use the Practice Statement in an appeal by two fitters who had suffered injuries and then suffered from heart problems after lifting heavy equipment. They were refused disablement benefit on the grounds that there was no connection between the heart disease and the accident. Four of the seven judges believed that the outcome of Re Dowling (1967) on the same matter was wrong but it was still decided not to overrule it.
In Miliangos v George Frank (Textiles) Ltd (1976), the House of Lords overruled Re United Railways of Havana and Regla Warehouses Ltd (1961). In United Railways of Havana it had been held that damages in an English civil case could only be awarded in sterling. In Miliangos, the House of Lords held that damages could be awarded in the currency of any foreign country specified in the contract. A new rule was needed because of changes in foreign exchange conditions, and especially the uncertainty of sterling at that time.
The Supreme Court (formerly the House of Lords) uses the Practice Statement as a last resort, their reluctance coming from a concern that over use of the Practice Statement would introduce uncertainty. This is especially so with regard to criminal cases where certainty is important. It was twenty years after the Practice Statement before R v Shivpuri (1986) overruled Anderton v Ryan (1985) using the Practice Statement for the first time in a criminal case. Just a year after ruling on Anderton v Ryan on the issue of whether it was possible to be convicted of an offence of attempting to do the impossible ( if a person in possession of stolen goods admitted in court that they knew they were stolen goods at the time they came into their possession, they could not be charged with possession of stolen goods) the House realised that it had made a mistake. It was decided that the Anderton v Ryan case was a case of 'bad law' and the courts took the opportunity to put the matter right a year later in R v Shivpuri.
The House of Lords acted with caution in judicial law making and in C (a minor) v DPP (1995) they were wary of abolishing the doli incapax presumption. In C v DPP (1995), the House referred to the anomalies and issues raised by the rebuttable common law presumption that a child between the ages of 10 and 14 is incapable of committing a crime. Despite some suggestion that the House had some sympathy for the arguments for change, the House refused to abolish the presumption and publicly stated that they called upon Parliament to act on the matter. The case is helpful in that Lord Lowry gave some considered guidelines as to when it might be appropriate to engage in judicial law-making. Lord Lowry, who gave the leading judgement, said it was time for a much- needed new look at an undoubted problem. "This is a classic case for parliamentary investigation, deliberation and legislation." he said. Lord Lowry was perhaps right to be cautious as we now know the age of criminal responsibility is still the subject of considerable debate to this day.
Perhaps we can end on the words of Lord Atkin who, many years before the Practice Statement, observed 'Finality is a good thing, but justice is better'.
(Word Count 1846)
This essay discusses the impact the Practice Statement had on the House of Lords and decisions taken.
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