Common Law Reasoning and Institution Study Guide

Common law reasoning and institutions Adam Gearey
Wayne Morrison

This subject guide was prepared for the University of London International Programmes by:


Adam Gearey, Professor of Law, Birkbeck, University of London

and


Wayne Morrison, Professor of Law, Queen Mary, University of London

Acknowledgments
The authors would like to thank Angela Boots and Vicky Thanapal for the preparation of
Chapter 3, and Clare Williams, LLM.

This is one of a series of subject guides published by the University. We regret that owing to pressure of work the authors are unable to enter into any correspondence relating to, or arising from, the guide. If you have any comments on this subject guide, favourable or unfavourable, please use the form at the back of this guide.

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© University of London 2013

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Common law reasoning and institutions

Contents
1 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.1

An outline of the CLRI course . . . . . . . . . . . . . . . . . . . . . . . . . 5

1.2

Part I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

1.3

Part II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

1.4

Online study resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

1.5

Core textbooks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

1.6

Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

2 The contemporary legal system in England and Wales . . . . . . . . . 11
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
2.1

Studying the common law . . . . . . . . . . . . . . . . . . . . . . . . . .13

2.2

What is the common law? . . . . . . . . . . . . . . . . . . . . . . . . . .13

2.3

Acts of Parliament (statutes or legislation) . . . . . . . . . . . . . . . . . .14

2.4

Judicial law making and the development of the common law . . . . . . . .15

2.5

Judicial reasoning and the doctrine of precedent . . . . . . . . . . . . . . .15

2.6

The Human Rights Act 1998 and European Communities Act 1972 . . . . . .15

2.7

Human rights, judges and the rule of law . . . . . . . . . . . . . . . . . . .16

2.8

Thinking about trials and courts . . . . . . . . . . . . . . . . . . . . . . .17

2.9

The courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18

2.10 Article 6, due process and the right to a fair trial . . . . . . . . . . . . . . .20
2.11 Histories of the common law . . . . . . . . . . . . . . . . . . . . . . . . .22
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
Am I ready to move on?. . . . . . . . . . . . . . . . . . . . . . . . . . . .25

3 Research. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
3.1

Conducting legal research . . . . . . . . . . . . . . . . . . . . . . . . . .29
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35
Am I ready to move on?. . . . . . . . . . . . . . . . . . . . . . . . . . . .35

4 Case notes and essay writing . . . . . . . . . . . . . . . . . . . . . . 37
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38
4.1

Referencing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39

4.2

Case noting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39

4.3

Essay writing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43

4.4

Summary for planning an essay and an opening paragraph . . . . . . . . . .53

4.5

Bringing it all together: sample essay . . . . . . . . . . . . . . . . . . . . .54
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .56
Am I ready to move on?. . . . . . . . . . . . . . . . . . . . . . . . . . . .56

5 Reading law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58
5.1

The interaction of the court hierarchy and the doctrine of precedent. . . . .59

5.2

Ratio decidendi and obiter dicta . . . . . . . . . . . . . . . . . . . . . . . .60

5.3

Reading a case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .61

5.4

Reading a judicial opinion . . . . . . . . . . . . . . . . . . . . . . . . . .64

5.5

Following and distinguishing . . . . . . . . . . . . . . . . . . . . . . . . .68

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5.6

The role of rhetoric in a case . . . . . . . . . . . . . . . . . . . . . . . . .69

5.7

Reading statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .79
Am I ready to move on?. . . . . . . . . . . . . . . . . . . . . . . . . . . .79

6 The doctrine of precedent. . . . . . . . . . . . . . . . . . . . . . . . 81
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .82
6.1

Precedent as a practice . . . . . . . . . . . . . . . . . . . . . . . . . . . .83

6.2

Precedent and public reason . . . . . . . . . . . . . . . . . . . . . . . . .83

6.3

The structure of precedent . . . . . . . . . . . . . . . . . . . . . . . . . .84

6.4

Continuity and change in the doctrine of precedent . . . . . . . . . . . . .85

6.5

Tensions between the House of Lords and the Court of Appeal . . . . . . . .86

6.6

Judicial law making . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .87

6.7

Judicial law making and human rights . . . . . . . . . . . . . . . . . . . .87

6.8

Human rights, the doctrine of precedent and the common law

. . . . . . .88

Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .93
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .94
Am I ready to move on?. . . . . . . . . . . . . . . . . . . . . . . . . . . .96

7 Statutory interpretation . . . . . . . . . . . . . . . . . . . . . . . . 97
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98
7.1

Interpretation of statutes as sources of law and their application in court processes. . . . . . . . . . . . . . . . . . . . . .99

7.2

Problems of drafting statutes . . . . . . . . . . . . . . . . . . . . . . . . .99

7.3

Approaches to interpretation. . . . . . . . . . . . . . . . . . . . . . . . 100

7.4

Substantive case law on statutory interpretation . . . . . . . . . . . . . . 100

7.5

The judicial practice of statutory interpretation . . . . . . . . . . . . . . 101

7.6

Why is Pepper v Hart such a significant case? . . . . . . . . . . . . . . . . 102

7.7

Purposive interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . 102

7.8

The impact of membership of the European Union . . . . . . . . . . . . . 102

7.9

Interpretation and the Human Rights Act 1998 . . . . . . . . . . . . . . . 104

7.10 An example of statutory interpretation

. . . . . . . . . . . . . . . . . . 108

Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
Am I ready to move on?. . . . . . . . . . . . . . . . . . . . . . . . . . . 113

8 The judiciary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
8.1

The judiciary: some basic facts . . . . . . . . . . . . . . . . . . . . . . . 117

8.2

The politics of the judiciary and the HRA . . . . . . . . . . . . . . . . . . 119

8.3

Torture, terrorism and justice

8.4

Judicial independence and judicial accountability . . . . . . . . . . . . . 123

8.5

The judicial appointments process . . . . . . . . . . . . . . . . . . . . . 124

. . . . . . . . . . . . . . . . . . . . . . . 120

Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
Am I ready to move on?. . . . . . . . . . . . . . . . . . . . . . . . . . . 130

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9 Introduction to civil justice . . . . . . . . . . . . . . . . . . . . . . . 131
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
9.1

The values of civil procedure . . . . . . . . . . . . . . . . . . . . . . . . 133

9.2

The independence of the court and the prohibition on bias . . . . . . . . 133

9.3

Access to justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

9.4

Open justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141

9.5

Closed material proceedings . . . . . . . . . . . . . . . . . . . . . . . . 143

9.6

Alternative dispute resolution (ADR) . . . . . . . . . . . . . . . . . . . . 146
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
Am I ready to move on?. . . . . . . . . . . . . . . . . . . . . . . . . . . 153

10 Introduction to criminal justice . . . . . . . . . . . . . . . . . . . . . 155
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
10.1 The nature of the criminal justice process . . . . . . . . . . . . . . . . . 157
10.2 Agencies of the criminal justice system . . . . . . . . . . . . . . . . . . . 157
10.3 Tensions in the criminal justice system . . . . . . . . . . . . . . . . . . . 158
10.4 Policing

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159

10.5 The murder of Stephen Lawrence and the Macpherson Report . . . . . . . 160
10.6 The legitimacy of policing . . . . . . . . . . . . . . . . . . . . . . . . . 162
10.7 Terrorism, policing and criminal justice

. . . . . . . . . . . . . . . . . . 165

10.8 Arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
10.9 Evidence and the trial

. . . . . . . . . . . . . . . . . . . . . . . . . . . 168

10.10 What makes criminal trials fair? . . . . . . . . . . . . . . . . . . . . . . 170
10.11 Equality of arms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
10.12 Article 6 and hearsay evidence . . . . . . . . . . . . . . . . . . . . . . . 172
10.13 The jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
Am I ready to move on?. . . . . . . . . . . . . . . . . . . . . . . . . . . 180

Feedback to activities. . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
Using feedback . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
Chapter 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
Chapter 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
Chapter 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
Chapter 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
Chapter 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
Chapter 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
Chapter 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186

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Common law reasoning and institutions

Course overview
This introduction to the English legal system seeks to convey what is distinctive about the common law approach as a legal methodology as it reflects the history and politics of England and Wales. The course is vital in initiating students into the process of legal research. Course aims
To achieve an overview of the central institutions and processes of the English legal system and to introduce students to techniques of legal interpretation and legal research. Learning outcomes
On successful completion of the course you should be able to:


Understand the structure and operation of the central institutions and processes of the English legal system and to have a basic facility with techniques of legal interpretation 

Conduct of legal research using primary and secondary resources



Understand techniques of legal reasoning covering precedent and statutory interpretation 

Describe the role of judges; in particular the Law Lords and the Supreme Court



Explain the basic structures of civil and criminal justice



Understand the role of due Process and the importance of Article 6 (European
Convention on Human Rights) in civil and criminal justice



Explain the key concepts of legal aid.

Assessment
Formative assessment is conducted through interactive online activities. Summative assessment is through a three hour unseen examination.

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1

Introduction

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.1

An outline of the CLRI course . . . . . . . . . . . . . . . . . . . . . . . . 5

1.2

Part I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

1.3

Part II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

1.4

Online study resources. . . . . . . . . . . . . . . . . . . . . . . . . . . 6

1.5

Core textbooks

1.6

Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

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Introduction
Common law reasoning and institutions (CLRI) is a foundational subject that gives you an understanding of the basic institutions and structures of the common law. It also introduces you to fundamental skills that are essential to your work as a student of law. These skills relate to legal reasoning, to how you read cases and statutes and to how you use electronic databases and archives.
CLRI covers many themes and concepts, which we will introduce to you through this subject guide. We hope that as you read your way through the subject guide and the set textbooks, you will begin to appreciate that there is a set of core themes, and that rather than a mass of detail, there is a ‘logic’ to the subject. The key thing is: don’t panic. Work slowly and methodically through the materials, and the shape of the subject will slowly reveal itself.
At the end of this chapter, we will look at the syllabus for the course. For the moment, though, we will look at how to approach the CLRI course. We will first outline the course then turn to some specific issues. Later in the chapter we will provide a note on the examination and describe how you can get the best use out of the relevant textbooks. The textbooks and the subject guide work hand in hand to develop your thinking on law. We will also give you further tips about how to use the course materials in later chapters.

Common law reasoning and institutions 1 Introduction

1.1 An outline of the CLRI course
In our description of the course below, we have divided the syllabus into two parts.
This is purely for ease of understanding and overview. It does not reflect the way that the course is examined.
Part I consists of Chapters 3–5; Part II consists of Chapters 6–10.

1.2 Part I
Part I of the subject guide focuses on:


identifying key features of the common law tradition and the way they have developed within the English legal system



the principles of legal research and identifying the sources of law



being able to use the legal resources in the online library as well as paper-based resources 

becoming familiar with case law, being able to critically read case reports and understand the forms of legal reasoning involved in the development of the common law; being able to make case notes



understanding the legal reasoning involved in the application of statute law



essay writing and critical thinking.

1.2.1 Legal Research Skills: Chapter 3
The relevant skills that will be tested via the CLRI examination (directly and indirectly) are set out in Chapter 3 (the examination is described below, and in more detail in
Chapters 4 and 5). It is worth concentrating on the key skills specified in Chapter 3 rather than attempting to acquire expertise in all the areas covered in the chapter.

1.2.2 Case noting, reading statutes and essay writing: Chapters 4 and 5
Chapters 4 and 5 are part of a whole: when you have worked your way through these chapters a couple of times, you will appreciate how research skills, case noting skills and essay writing all interface with each other. Chapter 5 focuses on reading cases and statutes. It builds on the case noting and the comprehension skills introduced in the previous chapter, but also introduces us to reading statutory language and the kind of question that you will encounter in Part C of the examination (see Section 1.5, below).
When you have read through Chapters 4 and 5 you will be moving towards a more sophisticated understanding of how to ‘think like a lawyer’. However, in order to advance in your understanding, you need to combine what you have learnt in the first part of the course with the second part of the course.

1.3 Part II
Part II covers the following themes:


the practices of precedent and statutory interpretation



the relationship of the common law courts to the European Court of Human Rights in Strasbourg



the issues surrounding the judiciary; the politics of the judiciary and the selection of suitable persons to become judges



the criminal justice system in outline, with particular reference to the jury, policing, prisons and sentencing



the idea of human rights in the legal system; in particular the importance of Article
6 of the European Convention on Human Rights: the right to a fair trial

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

the normative theory of the civil and criminal trial; in particular the principles of integrity, participation and open justice.

The themes relevant to the second part of the course will be examined through a series of essays that you will write in the examination. It is therefore important to link together your approach to these themes with the essay writing skills that are outlined in Chapter 4. Please also bear in mind that case noting skills are essential to building your understanding of the topics outlined above. Each chapter contains a list of essential cases which you need to read and make case notes on.
The title of this course is Common law reasoning and institutions. Our focus is very much on courts, but we will also consider other institutions involved in dispute resolution. However, we use the word institution in a wide sense: an ‘institution’ can refer to a physical place like a court, but it can also refer to ideas and doctrines that give a set of practices (or ‘ways of doing things’) a form and an identity. Furthermore, we are very much concerned with the values that should underlie the law, and we need to understand common law institutions and processes (the processes of criminal and civil justice) from the perspective of fair trial rights.

1.4 Online study resources
In addition to the subject guide and the Essential reading (see below), it is crucial that you take advantage of the study resources that are available online for this course, including the virtual learning environment (VLE) and the Online Library.
You can access the VLE, the Online Library and your University of London email account via the Student Portal at:


http://my.londoninternational.ac.uk

On registration you will automatically have been granted access to the VLE, Online
Library and your fully functional University of London email account.
If you have forgotten your login details, please click on the ‘Forgotten your password’ link on the login page.

1.4.1 The VLE
The VLE, which complements this subject guide, has been designed to enhance your learning experience, providing additional support and a sense of community. It forms an important part of your study experience with the University of London and you should access it regularly.
The VLE provides a range of resources for Laws courses:


Online audio presentations – recorded audio lectures which cover most of the material for the core subjects which are intended to complement your studies.



Latest news and updates – provide information on both the programme and your courses (e.g. information on how to book the Laws weekend courses).



Student discussion forums – An opportunity to debate and interact with other students on your course.



Electronic versions of your study materials – to provide you with flexibility in how and where you study.



Computer marked assessments and exercises - multiple choice questions with feedback which allow you to test your knowledge and understanding of the key topics in your course.



Past examination papers and Examiners’ reports – are vital to developing your examination technique as they provide advice as to how questions might be answered. Be aware that the format of examinations might change from year to year. The format of the CLRI examination will change for the session 2013.

Common law reasoning and institutions 1 Introduction


Recent developments – Recent developments are published in February each year for each course. They cover any significant changes in the law since the publication of the subject guide which are included in the examinable material, including key cases or updates on the coming into force of new legislation, plus updates on new editions of recommended reading.



VLE subject newsletters - Remember to check the VLE for the newsletters from the
University of London. You may also register to have these newsletters sent to you directly. 

Video introductions – There are also video introductions to the Intermediate courses recorded by the Subject Convenor on the Course webpage as well as at www.youtube.com/user/UOLIAulp All of the above resources are available for CLRI and most will be available for our other courses as well. Check the VLE for the most up to date materials for each course.

1.4.2 Making use of the Online Library
The Online Library contains a huge array of resources including journal articles, case reports, legislation and newspapers. The specialist legal databases will help you read widely and extensively.
The Online Library Laws Gateway contains resources and support materials which are relevant to your course. You can access the Online Library by selecting the Online
Library tab within your portal, or directly at:


www.external.shl.lon.ac.uk/res/subjects/index.php?group=law

To access the majority of resources via the Online Library you will either need to use your University of London Student Portal login details, or you will be required to register for, and use, an Athens login:


www.external.shl.lon.ac.uk/contact/index.php

The Online Library Laws Induction Guide introduces you to the extensive resources and support guides which are provided, and is a good starting point if you are new to the Online Library:


www.external.shl.lon.ac.uk/interactive/law_induction/page_01.htm

The easiest way to locate relevant journal and newspaper articles in the Online Library is to use the Summon search engine:


www.external.shl.lon.ac.uk/summon/index.php

For further advice on searching Summon, see the Summon for Law Students guide:


www.external.shl.lon.ac.uk/info_skills/law/search_summon.php

If you have any questions about the Online Library you can contact the Online Library
Enquiry Service. The Enquiry Service is staffed by a team of professional Librarians
Monday to Friday 09.00 – 17.00 GMT.
Contact the Online Library by:


email: [e-mail]



Complete the enquiries form: www.external.shl.lon.ac.uk/help/enquiries/index.php



Telephone: [phone]

1.5 Core textbooks
It is important to familiarise yourself with the core textbooks. The subject guide is your basic point of reference, and it is important to always start with this guide and the relevant chapters. The subject guide will point you to the relevant sections in the core textbooks. The course books are:

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

Holland, J.A. and J.S. Webb Learning legal rules. (Oxford: Oxford University Press,
2013) eighth edition [ISBN 9780199657490]. (Referred to as ‘Holland and Webb’ in this guide).



Gearey, A., W. Morrison and R. Jago The politics of the common law. (Oxford:
Routledge, 2013) second edition [ISBN 9780415662369]. (Referred to as ‘Gearey et al.’ in this guide.)

Different chapters of the subject guide will refer you to different Essential reading from the books above.
Gearey et al. provides you with critical arguments that will help you write essays. You are not expected to sit down and read it from cover to cover in a single sitting (unless you really want to). The book is meant to be digested slowly and worked through as you work through this subject guide.
Holland and Webb contains a great deal of useful information about the institutions and structures of the legal system in England and Wales. Gearey et al. is organised more thematically, and encourages you to think about what you have read in a critical way. Familiarise yourself with the basics of the subject using Holland and Webb before you start reading Gearey et al.. To get the most out of Gearey et al., see it as a way of developing your thinking. Read the chapters slowly and carefully, make notes on them and ensure that you link together your reading of the book with the essential cases detailed in the latter chapters.
It is important to have some basic idea of how Gearey et al. is laid out and the central arguments that run through it. The first section of Chapter 1 of Gearey et al. outlines how the argument develops. You might find it useful at this stage to read this section and makes notes on the structure of the book.
Detailed reading references in this subject guide refer to the editions of the set textbooks listed above. New editions of one or more of these textbooks may have been published by the time you study this course. You can use a more recent edition of any of the books; use the detailed chapter and section headings and the index to identify relevant readings. Also check the VLE regularly for updated guidance on readings. Further reading
Please note that as long as you read the Essential reading you are then free to read around the subject area in any text, paper or online resource. You will need to support your learning by reading as widely as possible and by thinking about how these principles apply in the real world. To help you read extensively, you have the VLE,
Online Library and other legal resources.
Other useful texts for this course include:


Askey, S. and I. McLeod Studying law. (London: Palgrave Macmillan, 2011) [ISBN
9780230302792]. (Referred to as ‘Askey and McLeod’ in this guide.)



Slapper, G. and D. Kelly The English legal system: 2013–2014. (London: Routledge,
2012) fourteenth edition [ISBN 9780415639989].



Cownie, F., A. Bradney and M. Burton The English legal system in context. (Oxford:
Oxford University Press, 2010) fifth edition [ISBN 9780199567409].



Zander, M. The law-making process. (Cambridge: Cambridge University Press,
2004) sixth edition [ISBN 0521609895].



Zander, M. Cases and materials on the English legal system. (Cambridge:
Cambridge University Press, 2007) tenth edition [ISBN 9780521675406].

Common law reasoning and institutions 1 Introduction

1.6 Assessment
Important: the information and advice given here are based on the examination structure for the session 2013/14. Please note that as from 2013/14 the assessment for CLRI has changed so materials on the VLE and previous subject guides will not necessarily be geared towards the current assessment structure. Because of this we strongly advise you to always check both the current Regulations for relevant information about the examination, and the VLE. You should also carefully check the rubric/instructions on the paper you actually sit and follow those instructions.
As the examination is described in more detail in Chapters 4 and 5, the following note provides a basic overview. Please read this carefully as it is different from the examination previously set in CLRI.
The examination is divided into three parts: A, B and C. All parts are compulsory. No materials can be taken into the examination.
Part A requires you to make a case note. The relevant case will be released to you in October 2013. You will be required to submit the case note through the VLE. The questions in Part A of the examination will examine your understanding of the case note. Part A will also contain an unseen extract from a case and questions that test your comprehension of the case and the issues that it raises. You will not be allowed to take the case note into the examination.
Part B requires you to answer two out of a choice of questions that are based on material contained in the last section of Chapter 2 and Chapters 6–10 of the subject guide. Part C is based on an extract from a statute. The extract will be released to you at the same time as the case. Part C of the examination will contain a number of questions that test your understanding of the statutory extract, in particular, your ability to apply the relevant law to a series of imaginary facts.
Parts A, B and C carry equal marks.

1.6.1 Preparing for the examination
The best way to prepare for Part A is to complete the activities outlined in Chapters
3 and 4 of this subject guide. Make sure you practice making case notes, and read as many cases as possible.
The best way to prepare for Part B is to make sure you are familiar with the techniques of essay writing outlined in Chapter 4 of this subject guide. Be aware that you need to build up a body of notes on the examined areas. This means reading the relevant chapters of the subject guide and the textbooks and using the online resources.
Gearey et al. is particularly relevant to this part of the course.
The best way to prepare for Part C is to practice reading statutes, and to ensure you have worked through the exercises in Gearey et al..
Note: examples of Part A, B and C questions are given in this subject guide. An
Examiners’ report on the previous year’s examinations will be published on the VLE before you take your examinations, make sure to read this report but bear in mind that the examination it refers to will be different from the examination you will sit.
The other essential skill that you should practice is writing against the clock. Make sure that you gain experience of answering unseen questions in a limited time frame.
Remember, it is important to check the VLE for:


up-to-date information on examination and assessment arrangements for this course 

where available, past examination papers and Examiners’ reports for the course which give advice on how each question might best be answered.

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Summary
This chapter has laid out a basic overview of the course, the relationship between the subject guide and the textbooks and provided an introduction to the examination. It is important to realise that you need to work on both the skills detailed in this subject guide and the substantive areas of the legal system that the course considers. It is also essential to work on your essay writing skills, and practice writing timed essays. Above all, work your way slowly and carefully through the subject guide, the textbooks and the online resources and allow yourself sufficient time to read and digest the materials. 2

The contemporary legal system in England and Wales

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
2.1

Studying the common law . . . . . . . . . . . . . . . . . . . . . . . . .13

2.2

What is the common law? . . . . . . . . . . . . . . . . . . . . . . . . .13

2.3

Acts of Parliament (statutes or legislation) . . . . . . . . . . . . . . . . .14

2.4

Judicial law making and the development of the common law

2.5

Judicial reasoning and the doctrine of precedent . . . . . . . . . . . . .15

2.6

The Human Rights Act 1998 and European Communities Act 1972 . . . . .15

2.7

Human rights, judges and the rule of law . . . . . . . . . . . . . . . . .16

2.8

Thinking about trials and courts . . . . . . . . . . . . . . . . . . . . . .17

2.9

The courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18

2.10

Article 6, due process and the right to a fair trial . . . . . . . . . . . . . .20

2.11

Histories of the common law . . . . . . . . . . . . . . . . . . . . . . .22

. . . . . .15

Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
Am I ready to move on

. . . . . . . . . . . . . . . . . . . . . . . . . .25

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Introduction
This chapter introduces the basic ideas and themes that run through the course.
We will look first at cases and statutes as sources of law; a theme that we will place in its historical context. Our attention will then turn to an outline of judicial law making and the doctrine of precedent. We will then examine the impact of European
Union (EU) law and European human rights law on common law. The next section of the chapter will reflect upon the way in which the Human Rights Act 1998 (HRA) has redefined the relationship of the courts to Parliament, and examine elements of the doctrine of the rule of law. This section will also examine the idea of law in a democracy. The latter sections of the chapter will overview essential themes that relate to courts and trials and a concluding section will outline some themes that relate to the recent history of the common law.

Essential reading


Holland and Webb, Chapter 1 ‘Understanding the law’.



Gearey et al., Chapters 1 ‘Introduction Part I’ and 2 ‘Introduction Part II’.

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2 The contemporary legal system in England and Wales

2.1 Studying the common law
The first section of this chapter outlines the main institutions of the common law that we will study and the contemporary situation of the common law in England and
Wales. Later, we will turn to some historical perspectives.
It is important that you:


know how the hierarchy of courts operates and understand the dynamic nature of the doctrine of precedent (this will be covered in Chapter 5).



know how the judges and magistrates work (Chapter 8).



are able to read cases and statutes (Chapters 6 and 7).



understand the way the criminal and civil courts operate (Chapters 9 and 10).

For the moment, however, we want you to get an overview of these matters.


The common law is often presented through its history. This makes it difficult to begin thinking about the common law today, as one has to go back to its
‘beginnings’. In this chapter we will outline the history of the key institutions of the common law, but our focus is the contemporary situation of the common law.



The contemporary common law cannot be studied in a vacuum. As we will outline below, there are two significant ‘events’ that we need to take into account: the point at which the United Kingdom became part of the EU in 1972, and the enactment of the HRA. This means that the common law is now inseparable from the law of the EU and the law of international human rights, as defined by the
European Convention on Human Rights (ECHR).



In this chapter, we will also introduce our concerns with courts and trials.



At this stage in our studies we are not concerned with the functions, ends or social context of the law. We will deal with all these concerns in the latter part of the subject guide.

2.2 What is the common law?
The phrase ‘common law’ is used to denote the law applied by the courts as developed through the system of precedent. Historically, the common law can be dated to the early 1100s and the work of the Norman Kings in developing a single body of rules with which to govern England. Roman law had an important influence on the development of the common law, but we cannot trace this important theme in this subject guide.
Commentaries were central to the development of the common law. There were important studies of the common law written throughout the medieval period (for instance, Henry de Bracton’s De Legibus et Consuetudinibus Angliae, 1235) but we will take Sir William Blackstone (1723–80) as our main point of reference. Blackstone was a Justice of the Court of the King’s Bench and a commentator on the common law.
He wrote one of the most influential and systematic studies of the common law.
Blackstone’s Commentaries on the laws of England (1765−69) described the common law as ‘unwritten law’ in contrast with the written law of statutes or codes. Blackstone presented the common law as a form of oral tradition derived from general customs, principles and rules handed down from generation to generation by the court lawyers and judges, who participated in a common life in one of the Inns of Courts to which all had to belong. Eventually this oral tradition was reflected in the reports of the decisions of the important courts and the ‘knowledge’ was then stored in a ‘written’ form, namely the Law or Case Reports.
You should note, however, that there was no organised system of court reporting until the late 19th century and prior to that all reports were private initiatives (reports were made by barristers in the courts and circulated privately for a fee).
Historically, the common law tradition has always placed the judiciary at the centre of things. Judicial decisions are seen as constituting the written law – a body of maxims,

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Further reading


Holland and Webb, Chapter 1 ‘Understanding the law’, Section 1.5 ‘Regulation:
Legal rules and social rules’.

2.3 Acts of Parliament (statutes or legislation)
Essential reading


Holland and Webb, Chapter 1 ‘Understanding the law’.

Although the common law is judge made, and case law remains a source of law, influential legal reformers active in the early 1800s were critical of what they saw as the incoherent nature of case law. They drew on traditions of British political thinking that focused on the importance of sovereign power rather than the law making power of the judges. In particular, Hobbes’ Leviathan (1660) proved an important reference point. Hobbes argued that there should be a single source of sovereign power in a nation. Political events allowed this source of power to be associated with Parliament; and the influence of radical thinkers like Jeremy Bentham (1748–1832) and John Austin
(1790–1859) further developed what became known as the positivist approach to law.
The positivists stressed the importance of a coherent, logical analysis of the law; and
Bentham pushed forward various reform projects that were designed to give the law a single, informing philosophy. Bentham particularly disliked the old fashioned nature of the common law; likening it to a crumbling gothic castle. Law had to become modern and linked to the rational government of the country.
By the late 19th century, statutes, or Acts of Parliament, had become a major source of law in England and Wales. As the state took on increasing responsibility for economic management and social regulation, the volume of statute law continued to grow.
Whilst Bentham and Austin might not have agreed with the growth of state power, and certainly did not anticipate the welfare state of the late 20th century, it would be fair to say that social and economic policy required a great deal of legislation.
One must also remember the political changes that underlay the sovereignty of
Parliament. From the 1830s onwards, the franchise (i.e. those who had the right to vote) also expanded. This was due to popular agitation, as well as the work of reforming governments, who sensed that a broad franchise was necessary to legitimise (i.e. make acceptable) the power of Parliament. Shortly after the First World
War, when the right to vote was granted to women, the franchise included most adults in England, Wales, Scotland and Northern Ireland.
We can link this point about the legitimacy of Parliament with the idea that statutes are the supreme source of law. A statute will override inconsistent case law. This is because Parliament is a democratic body, elected by ‘the people’. It is therefore justifiable that Parliament creates supreme law.
Perhaps the most accurate contemporary statement about the sources of authority of the law follows H.L.A. Hart’s argument in The concept of law (1961). We can refer to two sources of law in the United Kingdom (or, in Hart’s language two ‘rules of recognition’ that allow us to specify the sources of UK law): cases and statutes. Statutes are the supreme source of law; a fact that recognises the sovereignty of Parliament. We could say that this element of law reflects the legitimacy of Parliament. Judges have a law making power to develop the rules of the common law. Note, however, that although this power is subordinate to Parliament, it should properly be seen as a law making power. We will return to the question of its legitimacy in the section below and in later chapters of this subject guide. We will see that, since the HRA, the relationship of the judges to Parliament has become a ‘live’ issue.

Further reading


Askey and McLeod, Chapter 2 ‘The sources of English law’.

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2 The contemporary legal system in England and Wales

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2.4 Judicial law making and the development of the common law
One of the main concerns that we will deal with relates to judicial law making. As Sir
Edward Coke† (1552–1634) put it in the preface to his Ninth report: it is one amongst others of the great honors of the common law that cases of great difficulty are never adjudged or resolved in tenebris or sub silentio suppressis relationibus, but in open court: and there upon solemn and elaborate arguments, first at the bar by the counsel learned of either party, (and if the case depend in the court of common pleas, then by the sergeants at law only); and after at the bench by the judges, where they argue
(the presiding judge beginning first) seriatim, upon certain days openly and purposely prefixed, delivering at large the authorities, reasons, and causes of their judgments and resolutions in every such particular case, (habet enim nesio quid energia viva vox:) a reverend and honorable proceeding in law, a grateful satisfaction to the parties, and a great instruction and direction to the attentive and studious hearers.

†

Coke was Chief Justice of the King’s Bench. His
Institutes of the lawes of
England and Reports laid the foundations for much contemporary thinking on the common law.

Note how important the idea of decision in open court is for Coke. We will argue that these elements of the common law became adapted for a democratic context many years after Coke was writing. Our key point is that judicial law making is legitimate in a democracy because it takes place in open court, and judges justify and give reasons for their decisions. We will also argue that judicial law making is legitimate because it is restrained and, for the most part, defers to Parliament.

Summary
Judges make law; the pressing issues relate to the legitimacy of judicial law making.
This takes us to a number of concerns, including the relationship between the courts and Parliament and the impact of the HRA. We will now begin to develop our understanding of these themes.

Further reading


Askey and McLeod, Chapter 3 ‘The constitutional context of English law’ is a good overview of the basic constitutional structure and context of the law of England and Wales.

2.5 Judicial reasoning and the doctrine of precedent
The development of the common law is guided by the doctrine of precedent: this means that cases that are judged to be similar are decided in the same way. In order to understand what judges are doing we will suggest that judicial reasoning can be understood as a structure (or institution, see above) that allows the common law to develop coherently. It also limits judicial law making. We will investigate this issue in depth in Chapter 6. We will argue that precedent is a practice, and a significant element of this practice is the restraint it places on judicial discretion to make law. We will also argue that precedent is itself structured by the idea that judges must explain their decisions and justify them. We will call this the requirement that judges give public reasons for their decisions.

2.6 The Human Rights Act 1998 and European Communities Act 1972
From the contemporary perspective, the most important concerns in relation to the modern common law are perhaps the HRA and the European Communities Act 1972
(ECA). You are beginning your study of the common law in a period of unprecedented change. The HRA ‘domesticated’ the ECHR. This means that Convention rights are part of
English law. Prior to 1998, the Convention was only binding on the United Kingdom as an international treaty. Convention rights could not be relied upon in English courts.
The important consequence of the domestication of the Convention is that we can now begin to speak of an indigenous law of human rights.

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As Convention rights are now available in English courts, it is no longer necessary to take the United Kingdom to the European Court of Human Rights (ECtHR) in Strasbourg if one’s human rights have been infringed. One of the consequences of the HRA is thus to increase the influence of European human rights law on common law.
The ECA makes the law of the EU part of the law of the United Kingdom. This is because the United Kingdom is part of the EU. Thus, since 1972, it is no longer possible to think of the common law as somehow separate from the civilian law traditions of continental Europe. The common law and European forms of civil law are now linked together in the law of the EU.
Don’t confuse the law of the EU with the law of the ECHR. They are different sources of law, and their effect on English law is also different. In this subject guide we focus more on the ECHR than EU law. You might want to look at your Public law notes, as they go into much more detail on EU law. Other than this basic outline of EU law, the sole issue we will investigate is that of the effect of European matters of interpretation on common law methods of reading statutes.

Further reading


Holland and Webb, Chapter 1 ‘Understanding the law’, Section 1.5 ‘The courts’.

2.7 Human rights, judges and the rule of law
The HRA incorporates the ECHR into UK law. Under s.2 of the HRA, when deciding on questions under the Convention, courts must ‘take into account’ the case law of the
ECtHR. They are therefore not explicitly bound by those decisions, but are under a duty to consider them. These provisions mean that when any court is considering a case which raises human rights issues, it must look at the case law from the ECtHR and interpret the requirements of the ECHR in the light of that case law. We look at these issues in detail in Chapter 6.
Under s.3 of the HRA, the courts are obliged to interpret legislation ‘in so far as it is possible’ in a way which is compatible with the ECHR. This requirement means that the rules of interpretation by which the courts have been guided up until now must take second place to the requirement that statutory provisions should be compatible with the ECHR. We examine these issues in detail in Chapter 7.
Later we will be concerned with the developing relationship between the ECtHR in
Strasbourg and the domestic courts. We will see that this relationship raises important questions about the common law, human rights and the balance of power in the constitution. Building these points means that we have to think a little more about the
HRA, the judges and the doctrine of the rule of law.
Up until the HRA, it would probably have been inaccurate to refer to human rights at common law in the United Kingdom. Indeed, British common lawyers preferred the language of civil liberties to that of human rights. Since 1998, however, a catalogue of human rights exists at common law. Certain judges have seized upon the possibilities that this offers. It is outside the scope of this chapter (and this course) to describe all the effects of the HRA. Suffice to say that there are very few areas of public law that the HRA has not touched. Perhaps one of the most interesting areas of law is the development of privacy rights at common law – an area of protection that was traditionally rather weak. The Act is also having an interesting effect on the relationship between Parliament and the judges.
The HRA was meant to redress the balance between the courts and Parliament. The
Act allows judges to protect human rights against executive power. The difficult question is: has judicial power now begun to trespass on the power of Parliament (in order to become the ‘ultimate controlling factor’ in the constitution)? The judges have argued that they should be less deferential to Parliament, and more willing to use their enhanced powers to protect human rights. This is because Parliament itself has become too powerful and has, on occasions, not governed within the law.

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2 The contemporary legal system in England and Wales

These points can be illustrated by reference to some recent cases. In R (on the application of ProLife Alliance) v BBC (2003) Laws LJ argued that the courts had a
‘constitutional duty to protect and enhance the democratic process.’ In R (Jackson and others) v A-G (2005) Lord Bingham pointed out that the constitutional balance has been thrown out, and the ‘Commons, dominated by the executive, [has become] the ultimately unconstrained power in the state’ [50]. The courts appear to be asserting their constitutional competence against the executive. Other cases show similar evidence of judicial activism. Director of Public Prosecutions of Jamaica v Mollison (2003) shows that the independence of the judiciary is a ‘constitutional fundamental’ and cannot be trespassed upon by other branches of government. In Anufrijeva (2003) the House of Lords held that the executive could not make unilateral determinations of people’s rights which bypassed the scrutiny of the courts. This right of ‘access to justice’ could also be considered a ‘fundamental’ constitutional principle. In A and others v Secretary of State for the Home Department (the Belmarsh case) (2004) the
House of Lords stated that indefinite detention of foreign terrorism suspects was in breach of the ECHR.
Tensions between the courts and Parliament over their respective roles have recently become more pronounced. Although divided on the issue, certain members of the present Coalition Government want to either repeal or limit the HRA. Conservative backbench Members of Parliament (MPs) are particularly angry over rulings of the
Strasbourg court and the Attorney General, Dominic Grieve (appointed 2010), has stated that the ECtHR has become too intrusive.
These themes clearly connect with those considered in Public law. Our themes are a little more limited. We will be interested in the impact of human rights on the ‘politics of the judiciary’ and on the common law. We will also make references to human rights – particularly fair trial rights – in our analysis of civil and criminal justice.

Further reading


Askey and McLeod, Chapters 3 ‘The constitutional context of English law’ and 5
‘The protection of human rights and fundamental freedoms’.



Holland and Webb, Chapter 10 ‘“Bringing rights home”: legal method and the
Convention rights’.



Gearey et al., Chapter 2, Introduction Part II.

2.8 Thinking about trials and courts
Fair trial rights can be organised around three key principles:


those that relate to the integrity of procedure



those that inform the participation of the parties in the trial



those that inform the principle of open justice.

These principles will be explained as we go along, but they are founded on common sense, and should not confuse you.
We now want to explain what we mean by a normative theory of the trial.
Examination questions (in CLRI and other first year subjects) will ask you to discuss or critically assess the law. In order to discuss or critically assess you need a standard of judgement from which to offer your assessment. So, as far as common law institutions are concerned, you need to know what they should do, in order to offer an assessment as to whether or not they do achieve these ends.
Imagine that a trial has taken place before His Honour, Justice Bent. The judge tells the court: Ladies and Gentlemen, my decision is as follows: I took an instant dislike to the plaintiff, and so have decided in favour of the defendant. Furthermore, as the defendant

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One’s reaction to this decision would be: ‘The judge is clearly biased. This is not a just decision.’ When we said above that we are putting forward a normative account of the trial and that this is based on common sense we had in mind (albeit at a more sophisticated level) problems like that of the biased judge. If we think that a biased decision is not a just decision, then we must (perhaps without knowing it) have a sense of the norms
(rules and principles) that should underlie the trial. Thus, the prohibition on bias is an important part of a normative theory. If you object to Justice Bent you therefore must have an implicit normative theory of the trial.
The point of your studies is to help you bring out and develop ideas that you already have. This involves structured thinking: thus a ‘normative theory of the trial’ goes beyond common sense insights, because it is trying to provide a more coherent and rigorous way of thinking about legal institutions.
If we want a normative account of common law trials then we can build our account on the international right to a fair trial (Article 6 of the ECHR). This is an important reference point because it provides a statement of the values that should inform a fair trial. Our starting point for critical thinking is: if courts and trials should be fair, are common law courts and trials fair? This means a) knowing how trials and courts work
(i.e. questions of information, facts and detail) and b) thinking critically about this information from the perspective of a question of value (i.e. what should be the case).
In Justice Bent’s decision, above, the first question would relate to the court that
Justice Bent was sitting in; his powers as a judge, etc. The second question is: has
Justice Bent made a fair decision? This is the process of critical thinking on which you will be tested in the examination. So, from the very beginning, it is important to start reflecting upon this process.
If you still don’t understand these ideas, try reading Holland and Webb, Chapter 1
‘Understanding the law’. Although we will not use ‘functional thinking’ to organise our account of the law, it is coherent with the ideas that Holland and Webb put forward.
You could also re-read Chapter 1 of Askey and McLeod.

2.9 The courts
Essential reading


Holland and Webb, Chapter 1 ‘Understanding the law’, Section 1.3 ‘What is law?’.

2.9.1 The basics of procedure
It is useful to think about some basic points in relation to how procedure works.
A court can be seen as an arena, wherein a contest is waged between parties in which one emerges the winner. In the adversarial system practiced in common law courts, the parties dictate, within the constraints of traditional forms and packages (such as writs, forms of action and pleadings), the form, content and pace of proceedings. The pre-trial proceedings are arranged such that by the time of the trial, each side should have gained as much information as possible both to support their own case and to exploit any weaknesses in the opposition’s arguments. The agent of the court (i.e. the judge) should stand back and wait for the case to proceed to trial. During the trial, the judge in civil cases, and the judge and jury in criminal cases, should allow themselves to be guided, at least initially, as to the relevance of questions of fact and law by the parties’ advocates. The judge should take a procedural ‘back seat’ and intervene only to ensure that fair play is operating – or where the public interest is at stake.
The proceedings are dominated by the advocates for the parties with the prosecution trying to build a strong case against the defendant and the defence endeavouring to

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demolish the prosecution’s case. Throughout this procedure, witnesses are examined and cross-examined, using a variety of tactics available to the skilled advocate. Some advocates use subtle means to cause witnesses to react in a certain way, others use bullying tactics to obtain the same result from nervous participants. The success of a case, therefore, often rests upon the ability of an advocate to manipulate proceedings and not just the weight of evidence.
However, consider Lord Neuberger’s judgment in Al-Rawi v Security Service [2011] UKSC
34. Lord Neuberger is talking about the civil trial (i.e. not the criminal trial, but we will generalise his points below):
14 Under the common law a trial is conducted on the basis that each party and his lawyer sees and hears all the evidence and all the argument seen and heard by the court. This principle is an aspect of the cardinal requirement that the trial process must be fair, and must be seen to be fair; it is inherent in one of the two fundamental rules of natural justice, the right to be heard (or audi alterem partem, the other rule being the rule against bias or nemo iudex in causa sua).
[...]
16 Another fundamental principle of our law is that a party to litigation should know the reasons why he won or lost, so that a judge’s decision will be liable to be set aside if it contains no, or even insufficient, reasons. As Lord Phillips of Worth Matravers MR explained in English v Emery Reimbold & Strick Ltd (Practice Note) [2002] 1 WLR 2409, para 16, ‘justice will not be done if it is not apparent to the parties why one has won and the other has lost’... 17 A further fundamental common law principle is that trials should be conducted in public, and that judgments should be given in public. The importance of the requirement for open justice was emphasised by the House of Lords in Scott v Scott [1913] AC 417...
18 Connected to these fundamental principles are two other rules developed by the common law. First, a civil claim should be conducted on the basis that a party is entitled to know, normally through a statement of case, the essentials of its opponent’s case in advance, so that the trial can be fairly conducted and, in particular, the parties can properly prepare their respective evidence and arguments for trial. Secondly, a party in civil litigation should be informed of the relevant documents in the control of his opponent, through the medium of what is now called disclosure; this helps ensure that neither party is unfairly taken by surprise, and that the court reaches the right result, as neither party is able to rely on a selection of documents which presents the court with a misleading picture.

The civil trial process is given structure by certain values: ‘the two fundamental rules of natural justice, the right to be heard (or audi alterem partem, the other rule being the rule against bias or nemo iudex in causa sua).’ We have already encountered the rule against bias (nemo iudex in causa sua). We can now add to it ‘the right to be heard’
(audi alterem partem). These are technically called the ‘rules of natural justice’. Natural is rather unusual in this context. As we cannot deal with the history of natural law, or the way in which the common law has used this concept, we can only comment that
a) these rules are not really natural – they are a product of the culture of the common law, and b) they are also the products of common sense. Think about this. If a judge is biased against one of the parties to the case, we would say ‘that’s not a fair trial’.
Likewise – if one party dominates the proceedings we would also conclude ‘that’s not a fair trial’. Thus, nemo iudex in causa sua and audi alterem partem are common sense ideas about a fair trial or hearing.
Recall what we said above about the normative theory of the trial. We now have two other basic points we could make. As far as the common law trial is concerned, it is important to bear in mind that its two key principles are nemo iudex in causa sua and audi alterem partem. Later, we will see that these principles can, in turn, be linked to three other principles that determine the nature of the fair trial: the integrity of law/ procedure, participation and open justice.
The last two principles (participation and open justice) are also sketched out by Lord
Neuberger above. He states that a judge must give reasons. Justice, it might be said, is about visibility: one needs to know why one has won or lost a case. A judgment, then,

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University of London International Programmes cannot be given in secret. Surely secret judgment is the way in which unaccountable power (not law) operates. Civil justice, then, must be delivered in open court. Hence the principle of open justice. In the last paragraph Lord Neuberger describes another fundamental point. A trial proceeds through the participation of the parties, it requires a statement of case and disclosure of documents. We could relate this back to the open justice principle and the duty to give reasons: law is about argument and reason.
The trial is ultimately founded on these values.
Lord Neuberger is not talking about the criminal trial, and we have to acknowledge that there are differences between criminal and civil trials. However, we could make the same basic points about the criminal trial as the civil trial: it must be structured by fundamental principles.
We will go into much more detail on these themes in later chapters. To appreciate how the argument develops, we must now turn to the human right to a fair trial and the idea of due process.

2.10 Article 6, due process and the right to a fair trial
Read this extract from the ECHR, Article 6, right to a fair trial:
1. In the determination of his civil rights and obligations, or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
a. to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
b. to have adequate time and facilities for the preparation of his defence;
c. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
d. to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
e. to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

Article 6 is essential to our understanding of the fair trial. Note how it privileges criminal, rather than civil law. This is because in a criminal trial, the state prosecutes.
It brings its resources to bear on an individual defendant. It is therefore more likely that the defendant needs protection from the power of the state. As civil cases are between two parties (although the state can be involved) it is perhaps less likely that state power will distort the trial process. However, this does bring into focus questions of equality of resources and access to justice that we will consider in Chapter 9. For the moment, however, we need to deal with some preliminary issues.
In the section above, we dealt with the common law understanding of the trial. We now want to think about the trial from the perspective of Article 6. There is a similarity between the due process (fair trial) rights developed in international human rights law, and the understanding of the trial that has developed at common law. Remember that the point of our discussion at the moment is to get a general overview of these arguments. They will be developed in much more detail later on.

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2 The contemporary legal system in England and Wales

Re-read Article 6. Note how the Article stresses the importance of an ‘independent and impartial tribunal’. The guarantee to an independent and impartial tribunal is central to Article 6, as it lays down the foundations for the rule of law. We call this
‘the integrity principle’. The key point is that if the judge or the court is biased, or otherwise lacks independence, then the decision or ruling of that judge or court is compromised. Once the integrity of a legal procedure is breached, the very idea of the rule of law is called into question.
We could say that if a court is not independent, then the case has not been tried properly. In other words, there has been a breach of due process that provides grounds for an appeal. In Incal v Turkey [1998] ECHR 48, the court articulated the broader principle at stake in issues of independence and bias: ‘What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all…in the accused’ (para.65). Article 6, in this sense, protects the integrity of the courts in a democratic society.
We can thus appreciate the overlap between the principle of nemo iudex in causa sua
(a common law principle) and the human rights principle that prohibits bias. These two principles, taken together, stress the importance of the integrity of law and trial processes. Note the following: ‘Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.’ This is a fundamental guarantee for a fair criminal trial. At common law, there is a presumption of innocence in the criminal trial. In other words, the defendant is innocent until proven guilty by the prosecution.
We can therefore appreciate that there is a coherence between common law principles and human rights principles on this point.
The ECtHR has developed doctrines around these rights, called ‘equality of arms’ and
‘access to justice’. Equality of arms and the principle of access to justice are general doctrines and apply, in different ways, to civil and criminal proceedings. If one party has considerably more resources than another in a trial, then it may be the case that the proceedings are compromised and a fair trial has not taken place. We will connect this point to one about access to legal representation and the qualified right to legal aid. Finally, it is interesting that the first paragraph of Article 6 stresses the importance of public hearing. Note that this requirement can be limited. This relates back to the common law principle of judgment in open court. We will think about the limits on the open justice principle in Chapter 9.
We are limited in the extent to which we can consider rules of evidence on this course.
We will touch on the issue of cross-examination, particularly in relation to hearsay evidence, as there is a major case on this point that takes us back to the relationship between the common law and the Convention.
We will also examine alternative dispute resolution (ADR) and the role that it plays in civil justice. Given our concerns with procedural fairness, we will also consider how
Article 6 impacts on ADR.
We will use the term ‘due process’ to refer to fair trial rights; we also link both these terms to the rule of law. In our opinion, the rule of law is a broad doctrine that relates to the courts as much as the constitution.

Further reading


Gearey et al., Chapters 1 ‘Introduction Part I’ and 2 ‘Introduction Part II’.

You will have to read both these chapters at least a couple of times to get the sense of the argument. You might also prefer to read the section of the subject guide below before starting to read and re-read Chapters 1 and 2 of Gearey et al., as the section introduces key themes from these chapters.


Holland and Webb, Chapter 1 ‘Understanding the law’, Section 1.6 ‘The importance of procedural law’ describes the basic idea of procedural law (as in the processes of the civil and criminal courts).

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2.11 Histories of the common law
Essential reading


Gearey et al., Chapters 2 ‘Introduction Part II’, 3 ‘“As a system...the common law is a thing merely imaginary”’ and 4 ‘Recording law’s experience: features of the
“case”’.

The Essential reading relates the history of the common law to the development of ideas of due process and fair trial rights. This short history of due process attempts to place Article 6 and arguments about human rights in their historical context. One has to be careful relating due process to Magna carta; it is probably not the case that modern ideas of due process can be found in this ancient document. The roots of the modern ideas of due process are found in the revolutions of the late 1700s and the transformation of the medieval world. The last phase of our history shows how due process develops in a context characterised by capitalist economy and rational bureaucracy. The chapter concludes by showing the relationship between due process, the idea of dignity and human rights. Dignity relates to the idea of moral personhood, and to the need for the courts to have moral authority in order to judge citizens. Chapter 2 of Gearey et al. also goes into much more detail on a normative theory of the trial and contains some brief comments on colonialism. You can pick up on this theme, and a broader cultural analysis of the common law, in Chapters 3 and 4 of Gearey et al.
The common law is meant to somehow embody the genius of a people. What does this mean? These myths of common law are bound up with the history of the British
Empire. Most historians would agree that the colonial period was not one in which enlightened administrators spread civilisation to benighted peoples. The Empire was based on violence, conquest and the extraction of resources from the colonial
‘periphery’ to enable the development of the metropolitan power. The British Empire was sophisticated and, at least towards the late part of the 1800s, developed doctrines of indirect rule that made use of customary and indigenous law rather than overt violence. The dismantling of the Empire after the Second World War adds a further level of complexity to the legacies of the common law; but the point of these chapters is to encourage critical thinking about the British Empire and the post-colonial period.
The English legal system was exported around the world during the colonial period.
The legal systems of the USA, Australia, New Zealand, Singapore, Malaysia and most of the Commonwealth countries, for example, are all based on English common law although they may mix in local customary law, religion-based law or other influences.
Each country has its own unique characteristics. Hong Kong, for example, is a special administrative region of the People’s Republic of China (PRC) and its legal system is guaranteed by the basic law to be a common law system for 50 years after the hand over to the PRC. The PRC itself is a mixed civil law system with a socialist political organisation, yet it is adding common law features as it seeks to develop a more robust ‘rule of law’.
What makes these different jurisdictions part of the common law legal family is not exactly similar rules or propositions, but, rather, a working jurisprudence. As Justice
Story declared in Van Ness v Pacard (1829) 2 Pet 137, in respect of the USA:
The common law of England is not taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright: but they brought with them and adopted only that portion which was applicable to their situation. In the view of Chief Justice Shaw of Massachusetts, in Norway Plains Co v Boston & Maine
Railroad (1845) 1 Gray 263, the flexibility of the common law ensured its adaptation in different countries.

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2 The contemporary legal system in England and Wales

It is one of the great merits and advantages of the common law, that instead of a series of detailed practical rules, established by positive provisions, and adapted to the precise circumstances of particular cases, which would become obsolete and fail, when the practice and course of business, to which they apply, should cease or change, the common law consists of a few broad and comprehensive principles, founded on reason, natural justice, and enlightened public policy.

It is not necessary to agree with his precise listing of the basis of the common law in order to agree with the image of flexibility.
Today we can talk of two great secular legal families. The legal systems of continental
European countries, which were also exported around the world, gave rise to the civil law systems. The most influential of these has been that of France, because, by introducing the Code civil in 1804, Napoleon Bonaparte gave to France the first modern
European legal system, which was copied elsewhere. In practice, each jurisdiction may mix their secular legal tradition with local customary or religious traditions.

2.11.1 The civil law tradition
In contrast with the common law, the continent of Europe has been directly or indirectly influenced by Roman law (civil law), with its emphasis upon a code. Civil law proceeds from an exhaustive code of propositions in accordance with which all subsequent experience must be judged. In this picture, the civil lawyers of Europe are said to favour accessibility over certainty. They stress that the law should be available to all and easy to understand. Precedent is not dispensed with but its hold is looser than in the English legal system.
Civil law systems tend to use a career judiciary who staff inexpensive tribunals which can informally resolve disputes. A broad ‘purposive’ approach is encouraged towards the interpretation of enacted words and phrases, and consistency is considered less important than doing justice to the individual parties. It is not uncommon for codes to be deliberately vague and general in their choice of language, the better to allow individual cases to be decided upon their merits.

Further reading


Holland and Webb, Chapter 1 ‘Understanding the law’, Section 1.3.1. ‘Regulation: legal rules and social rules’.

Summary
Ensure that:


you cover the basic information on the common law and its institutions in Holland and Webb before turning to the critical analysis in Gearey et al.



you are familiar with the idea of the common law, the role of the judge and the role of Parliament



you are comfortable with the idea of precedent as a practice and the concept of public reason



you understand the normative theory of the trial and the relevance of Article 6



you can appreciate the links between the normative theory of the trial and the rule of law



you understand the historical themes about the development of due process and the idea of the post colonial common law. This is examinable material.

As far as the examination is concerned, these issues are important, but will primarily be examined in relation to the civil and criminal trial. So, rather than asking a freestanding question about the normative theory of the trial, the question will relate to particular features of the criminal and civil justice systems (or to the history of due process, see below). We will study these in Chapters 9 and 10.

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The one area covered by this chapter that will be examined as a free standing question is the material considered in Chapter 2 of Gearey et al. that relates the historical development of due process to the right to a fair trial and the rule of law. What follows, then, are sample questions that relate to Chapter 2 of Gearey et al.

Sample examination questions
Question 1 ‘Although due process can be traced back to Magna carta, it would be more relevant to see it in the context of human rights.’ Discuss.
Question 2 What is the relationship between due process and the rule of law?

Advice on answering the questions
Question 1 If you have read the brief history of due process presented in Chapter 2 of Gearey et al., then this question should be fairly straightforward. Although there are a number of possible approaches to this question, this summary will take a fairly specific one that reflects the arguments put forward in Gearey et al. Thus, the starting point is to agree with the statement in the question. Due process is mentioned in
Magna carta, but in the context of feudal law. Moreover, the interpretations of Magna carta that stress the defence of ideas like equality before the law are based on much later writings that reflect the constitutional struggles taking place in the 17th century in Britain. Thus, modern understandings of due process can indeed be linked much more closely to human rights, as articulated in the Universal Declaration and the
ECHR. In these documents, due process, or the right to a fair trial, is linked to concepts like dignity and equality before the law. The latter is part of a broader prohibition on discrimination, and thus represents the way in which modern human rights attempts to define a new political and social order after the end of colonialism. Thus the human right to the fair trial, stressing as it does the inherent dignity of the human being, is a peculiarly modern value, at best distantly related to Magna carta.
Question 2 This is another fairly straightforward question that should not cause any problems if you have read Chapter 2 of Gearey et al. closely. There is a very clear relationship between these two terms. Due process can be understood as the right to a fair trial. The rule of law – in a democratic sense – is related to the accountability and transparency of legal and political institutions. Thus, the link between due process and the rule of law can be seen at the level of the trial through notions like open justice and the duty to give reasons. At the level of the constitution, the rule of law also relates to the idea of the accountability of ministers to the courts, and the transparency of governmental processes in general. The strong link between the two terms can be seen in the requirement that the courts are independent and not dominated by executive power; another theme that runs through both the traditions of the common law and the international law of human rights, as evidenced by Article
6. There is one final important point. The human right to due process stresses the dignity of the individual and the principle of equality before the law. The doctrine of the rule of law can also be related to these values.

Further reading


Sir Thomas Bingham The rule of law. Available at www.cpl.law.cam.ac.uk/past_ activities/the_rule_of_law_text_transcript.php 

Sir Thomas Bingham The rule of law. (London: Penguin, 2011) [ISBN
9780141034539].



Baroness Hale ‘Dignity’ available at www.supremecourt.gov.uk/docs/ speech_100507.pdf 

Duff, A., L. Farmer, S. Marshall and V. Tadros The trial on trial. (Oxford: Hart
Publishing, 2006) [ISBN 9781841135427].

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2 The contemporary legal system in England and Wales

Am I ready to move on?


What, in outline, is the role and importance of European Union (EU) law, the Human
Rights Act (HRA) and European Human Rights law in relation to the common law?



Define due process and the idea of a fair trial.



What is the link between Article 6 and the argument that a normative account of a fair trial is necessary for critical thinking?



Explain briefly what is meant by judicial law making.



What is the relationship between judicial law making and the doctrine of precedent? 

Outline the relationship between Human Rights, the role of the judge and the HRA.



Outline the history of the common law as a movement from the colonial to the post-colonial period.



How is the common law tradition different from the civilian tradition?

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3

Research

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
3.1

Conducting legal research . . . . . . . . . . . . . . . . . . . . . . . . .29
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35
Am I ready to move on? . . . . . . . . . . . . . . . . . . . . . . . . . .35

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Introduction
This chapter focuses on three main areas: locating cases, locating statutes and locating journal articles. The chapter contains a number of exercises and online exercises, and it is essential that you work through these.

Essential reading


Holland and Webb, Chapter 2 ‘Finding the law’.

Common law reasoning and institutions

3 Research

3.1 Conducting legal research
The research that you will undertake on the CLRI course can be divided into a number of discrete exercises. As well as obtaining a good overview of how to use electronic databases to find cases, statutes and journal articles, the course is focused on the following (described in detail below):
a. The ability to find, comprehend and comment upon a case; to write a case note and to reflect upon the case in the examination.
b. The ability to locate journal articles of relevance to the examined areas of the course and to use them to build a body of notes on the relevant examinable areas.
c. The ability to use Halsbury’s Laws to research areas of law relevant to the exercises given later in the subject guide.
d. The ability to locate cases and statutes of relevance to the examined areas of the course and to use them to build a body of notes on the relevant examinable areas.
e. To be familiar with locating statutes in various databases and ascertaining whether or not the statute is in force.
f.

To be familiar with various advanced research skills as outlined below. These advanced skills are not explicitly examined, but will be useful to you later in the course. Key skills, which will be directly examined, are (a) above. The other skills, (b)–(f), will not be directly examined but will inform the examinable techniques of note taking and critical thinking.

3.1.1 A note on ‘sources’
In law, the terms ‘primary’ and ‘secondary’ sources are used. Primary sources are sources of law itself, while secondary sources are texts and commentaries about the law. For example, modern municipal law in the case of the United Kingdom is conventionally seen as having three primary sources:


case law



national statute law



transnational law (the law of the European Union (EU) and other international conventions and treaties).

Secondary sources of law include textbooks, treatises, legal academic articles, Law
Commission reports, etc.
In the context of researching, the sources you will be looking for may be both sources of law and other sorts of sources. Questions of sources also involve assessing how reliable or authoritative the sources are. For example, Wikipedia is extremely useful but it is written by self-recruiting volunteers, individuals who decide to add an article, and these are in turn commented on and changed by other writers. If you use
Wikipedia, you should note where statements are disputed and under discussion.

3.1.2 Conducting searches
Searching the Online Library

Essential reading


Student handbook, section entitled ‘The Online Library’

First, make sure that you have joined the Online Library.
Find out more about the Online Library in the Online Library Law Induction Guide: www.external.shl.lon.ac.uk/interactive/law_induction/page_01.htm Databases for searching for cases and statutes are LexisLibrary, Westlaw, Justis

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Databases for searching for legal academic articles are LexisLibrary, Westlaw, JSTOR
(mainly British), HeinOnline (mainly but not exclusively US), Cambridge Journals online, Academic Search Complete.
You need to be familiar with the different ways in which the databases work.
Quick start guides provide introductions to searching the databases: http://external.shl.lon.ac.uk/pdf/Searching for a case
Go to the Online Library and read the instructions on locating a case report:


www.external.shl.lon.ac.uk/info_skills/law/faqs/which_database_cases.php

Searching for case reports by topic:


http://www.external.shl.lon.ac.uk/info_skills/law/faqs/case_topic.php

Both Westlaw and LexisLibrary list cases considered and subsequent cases. JustCite is particularly useful:


www.justcite.com

especially the precedent map


www.justcite.com/Help/PrecedentMap

which visually depicts the relationships between cases.

Activity 3.1
Go to the Online Library and complete the Legal Research skills exercise on how to locate a case:


www.external.shl.lon.ac.uk/info_skills/law/faqs/cited_report.php

Then complete the Online Library Law Quiz tasks on searching Westlaw for a case:


www.external.shl.lon.ac.uk/interactive/law_quiz/page_01.htm

Searching Lexis Library for a case:


www.external.shl.lon.ac.uk/interactive/law_quiz/page_05.htm

No feedback provided.

Activity 3.2
a. Find the following cases. Give full citations for them and state briefly the steps you went through to find each case.


A Lord Denning case involving a dog attack in 1977.



A case involving a dog attack in 1989.



A case where a dog called Tyson was alleged to have attacked a police officer.

b. What offence(s) was the accused charged with in Shaw v DPP [1961] 2 All ER 446?
Describe the steps you take to find the information.
c. Give the citation from the English Reports for the reprint law report of Foss v
Harbottle (1843) 2 Hare 461.
d. Foss v Harbottle considers an aspect of company law. What was the name of the company at the centre of this case?
See the VLE for feedback.

Using Halsbury’s Laws of England
Later in the subject guide you will be asked to get a general overview of certain areas of law using Halsbury’s Laws. It is therefore important that you familiarise yourself with this resource.
For information about using Halsbury’s to overview law on any given topic (and follow up references to cases, statutes, etc.), complete the exercise at:

Common law reasoning and institutions


3 Research

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www.external.shl.lon.ac.uk/interactive/law_quiz/page_10.htm

The up-to-date LexisLibrary guide is the interactive version at:


http://external.shl.lon.ac.uk/interactive/lexislibrary_quick_start/page_02.htm

Searching for legislation
Go to the Online Library and read the legal research exercise on how to find UK
Legislation at:


www.external.shl.lon.ac.uk/info_skills/law/faqs/uk_legislation.php

Activity 3.3
a. Complete the legal research exercise on searching Westlaw for legislation at:


www.external.shl.lon.ac.uk/info_skills/law/faqs/uk_legislation.php?page=1

b. Now try the law quiz task at:


www.external.shl.lon.ac.uk/interactive/law_quiz/page_02.htm

c. And this law quiz task on searching LexisLibrary for legislation:


www.external.shl.lon.ac.uk/interactive/law_quiz/page_06.htm

d. Try this law quiz task on searching Justcite for legislation:


www.external.shl.lon.ac.uk/interactive/law_quiz/page_08.htm

e. Find the text of the Constitutional Reform Act 2005 on:


www.legislation.gov.uk†

Use the ‘Search all legislation’ box on the right side of the screen. What does the
Explanatory Note say about the Supreme Court?†
No feedback provided.
The legislation on www.legislation.gov.uk is free to access. Another freely available source for statutes is the British and Irish Legal Information Institute, BAILII:


www.bailii.org

You may find that you prefer this source as you can also use it to search for case law.
One limitation on these free sites is that the material only dates back to 1987/1988. You need to use one of the subscription databases to find acts or statutory instruments that are older than that. In fact, only one database, Justis, gives electronic access to the full text of all acts (as originally enacted) from 1235 to date.
Go back to the Constitutional Reform Act of 2005 that you found in Activity 3.3(e). Find
Schedule 4 of the Act (schedules come at the end of an act, after the sections). You’ll see a list of legislation that the Constitutional Reform Act will amend. Most of the amendments relate to the change in the title and role of the Lord Chancellor. Notice that one of the acts to be amended is the Habeas Corpus Act of 1679. Unless you have access to a printed set of Public General Acts, you will only find the full text of the as enacted version of this Act on Justis.


Using your Athens username and password, log on to Justis from the Online Library.



Click on the ‘Legislation’ link above the quick search box on the homepage.

You’ll see a form that you can fill in with information to retrieve the Act you need. In the box marked ‘Title’, type ‘Habeas Corpus’ and in the box marked ‘Year’, type ‘1679’.
Then click on the yellow ‘Search’ button under the form.
The next page to display will be your results. The first result displayed is the whole Act, followed by a result for each section. You can then click on the relevant section to see how the amendment detailed in the Constitutional Reform Act will affect this Act.
Note that those sections with a red ‘Repealed’ symbol next to them have been repealed and are no longer in force.

†

Notice that on this website you can also find Explanatory Notes, which are issued with the Act. These are often a good starting point for understanding the main thrust of the legislation, why it was needed and what it is intended to achieve. †

Note that it summarises nearly 40 clauses of the Act into just two sentences. page 32

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As we’ve seen using the above example, legislation can be amended over time, either by subsequent Acts or by secondary legislation (i.e. statutory instruments). When you are searching for legislation it’s important to know whether you need the text of the
Act as it was passed or as it is now, following any possible amendments.

Activity 3.4
Looking again at www.legislation.gov.uk, can you find where it tells you what form of legislation is included on the site?
To find the text of Acts as they currently stand, you can use LexisLibrary or Westlaw.

Activity 3.5
Using your Athens username and password, log in to LexisLibrary.
At the first screen, click on the ‘Legislation’ button in the navigation bar across the top of the page.
You’ll be presented with a form to fill out with information to locate the Act that you need. In the box marked ‘Title’ type ‘Constitutional Reform Act’; in the box marked ‘Year’ type ‘2005’ and in the box marked ‘Provision’ type ‘8’. Finally, click on the red ‘Search’ button.
You will be taken through to the full text of this section of the Act. You’ll see that this section relates to a new post of Head of Criminal Justice. If you scroll to the bottom of the screen you’ll find ‘Notes’. In this part of the database you will find information relating to the commencement date of the provision (i.e. when it comes or came into force) and information on any amendments that have been made to the section since the Act was passed. What change has been made to s.8?
Use the text of the Act from the www.legislation.gov.uk website for comparison.

Activity 3.6
a. Answer the following and make a note of your sources:


Is the Channel Tunnel Act 1987 currently in force?



Does the Civil Partnership Act 2004 apply to Scotland?



Why was the Latent Damage Act 1986 passed?

b. Find an Act which was passed sometime in the 1870s and which is concerned with dogs. State:


the short title of the Act



the long title of the Act



the date on which the Royal Assent was given



where you found it and, briefly, the steps you took to find it.

(No more than three or four lines should be necessary.)
c. Find an Act which was passed in the 1980s and which is concerned with dogs.
State:


the short title of the Act



the long title of the Act



the date on which the Royal Assent was given



where this Act does not apply



where you found it and, briefly, the steps you took to find it.

d. Find an Act which deals with the licensing of dogs. State:


the short title of the Act



the long title of the Act

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3 Research



the date on which the Royal Assent was given



the date the Act came into force



where you found it and, briefly, the steps you took to find it.

e. Find an Act passed in the 1970s which deals with dogs used for a particular purpose. State:


the short title of the Act



the long title of the Act



the date on which the Royal Assent was given



where you found it and, briefly, the steps you took to find it.

Finding law articles
Go to the Online Library and undertake the legal research skills exercise on searching for a cited journal article:


www.external.shl.lon.ac.uk/info_skills/law/find_articles.php#cite

Finding journal articles in different databases and on a specific topic
See the instructions at:


www.external.shl.lon.ac.uk/info_skills/law/faqs/which_database_articles.php

Activity 3.7
Now try these law quiz tasks on searching for journal articles:


www.external.shl.lon.ac.uk/interactive/law_quiz/page_09.htm



www.external.shl.lon.ac.uk/interactive/law_quiz/page_07.htm



www.external.shl.lon.ac.uk/interactive/law_quiz/page_03.htm



www.external.shl.lon.ac.uk/interactive/law_quiz/page_04.htm

No feedback provided.

Activity 3.8
a. Find an article on each of the following and make a record of your sources:


The police force and accountability



Race and sex discrimination within the legal profession



English judges



The use of force in international law



The appointment of judges in the USA



The invasion of Panama in 1988.

b. Find the following article. Which database is it on and what is the name of the author? ‘The doctrine of precedent and the provocation defence: a comment on
R v James’ (2006) 69(5) MLR 819–31.
No feedback provided.

Exploratory or speculative searches
The Online Library offers advice on ‘advanced’ (or ‘Boolean’) searches:


www.external.shl.lon.ac.uk/info_skills/databases/advanced_searching.php

and an excellent set of links to other websites.

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3.1.3 Useful law websites
The following are especially recommended for researching the set topics. Later in the subject guide, you will be asked to locate material in some of these archives.

UK official and departmental publications
Full text from Parliamentary sessions:


www.parliament.uk/business/publications/hansard/

Official documents
Command Papers since 2004 and House of Commons Papers from 2002/03:


www.official-documents.gov.uk/menu/browseDocuments.htm

Home Office


www.gov.uk/government/organisations/home-office

Ministry of Justice


www.gov.uk/government/organisations/ministry-of-justice

Law Commission
Reports and consultation papers – largely full text archive:


http://lawcommission.justice.gov.uk/

This is an absolutely crucial site for all law students but especially if you are looking at new legislation introduced as a result of activity by the Law Commission. The Reports outline all the reasons for reform, weighing different considerations and also discuss in detail the form of words that should be introduced. Reports go back to 1967 (although not all are available online).

HUDOC
The HUDOC database provides access to the case law of the European Court of Human
Rights (ECtHR) (Grand Chamber, Chamber and Committee judgments, decisions, communicated cases, advisory opinions and legal summaries from the Case-Law
Information Note), the European Commission of Human Rights (decisions and reports) and the Committee of Ministers (resolutions).
Access the website at:


www.echr.coe.int/hudoc

It contains instructions on how to search for materials.

Human rights
Full text of the Convention as amended by various Protocols:


www.echr.coe.int/Documents/Convention_ENG.pdf

Human and Constitutional Rights
A gateway of links maintained by the Arthur W. Diamond Law Library at Columbia Law
School, which is very good for comparative studies and international perspective:


www.hrcr.org/

Human Rights Watch (HRW)
HRW is an independent, nongovernmental organisation which monitors human rights issues worldwide. This website is very good for current awareness and country-bycountry coverage:


www.hrw.org/

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3.1.4 Law e-journals
Web Journal of Current Legal Issues
Published bi-monthly on the internet. The focus is on current legal issues in judicial decisions, law reform, legislation, legal research, policy related socio-legal research, legal information, information technology and practice:


http://webjcli.ncl.ac.uk/

Directory of open access journals: law and political science
Links to over 100 freely-available online law and politics journals. Each journal must exercise peer-review or editorial quality control to be included:


www.doaj.org/doaj?func=subject&cpid=45

The VLE
For current issues and changes, see the discussion section on the VLE.

Activity 3.9
Complete the online legal research exercises available from the CLRI page on your Laws VLE, or directly at: https://laws.elearning.london.ac.uk/mod/page/view. php?id=716 Note: These are compulsory; we estimate that these will take you between 6–8 hours. No feedback provided.

Summary
The two main objectives of this chapter have been to ensure that you are familiar with and competent to perform searches in electronic databases. To this end you should have completed a number of online exercises. The key directly-examined skill relates to the ability to find a case. The other skills outlined in this chapter are also indirectly examined. They are essential to building up a body of notes that will allow you to answer the questions contained in Part B of the examination. These skills are also essential to your career as a law student and should thus be taken very seriously.

Am I ready to move on?


Can you locate cases, statutes and journal articles in the Online Library of the
University of London International Programmes?



Can you use Halsbury’s Laws of England to get a general overview law of any given topic or follow up references to cases or legislation?



Can you undertake speculative searches of various databases in the Online Library and other useful online resources?

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Notes

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4 Case notes and essay writing

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38
4.1

Referencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39

4.2

Case noting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39

4.3

Essay writing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43

4.4

Summary for planning an essay and an opening paragraph . . . . . . . .53

4.5

Bringing it all together: sample essay . . . . . . . . . . . . . . . . . . .54
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .56
Am I ready to move on? . . . . . . . . . . . . . . . . . . . . . . . . . .56

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Introduction
The focus of this chapter is case noting and essay writing. Do not become frustrated.
You need to work slowly and carefully through this chapter. You will not ‘get it’ at first, or perhaps even second reading. You have to persevere. Do the exercises a couple of times each.

Further reading


Holland and Webb, Chapter 4, especially Sections 4.1.1 ‘Conveying information’,
4.1.2 ‘Constructing an argument’, 4.3 ‘How to present your answer’, 4.4 ‘Planning your answers’ and 4.6.2 ‘Common errors’.



Askey and Mcleod, Chapters 9 ‘Written English’ and 10 ‘Answering essay questions’. Common law reasoning and institutions

4 Case notes and essay writing

4.1 Referencing
In an examination essay it is acceptable not to reference at all, but make sure you are aware on the University’s rules on plagiarism. If you are repeating information verbatim (copying passages out of a book, case, article or other source) you should reference it. Given time constraints, something brief is acceptable. For instance, ‘as
Holland and Webb argue: “referencing is an important skill…”’ It is not necessary to have a bibliography at the end of an examination essay.

4.2 Case noting
Remember that you cannot take your case note into the examination, so you will have to ‘learn’ it. Note also that Part A has an ‘unseen’ component. The more cases you read during the year, the more you will prepare for this ‘unseen’ element of Part A.
The competent construction of a case note is an essential skill for law students and lawyers. Case noting concerns one of the two primary texts of law: cases (the other is, of course, statute). Cases are vital in the common law system, as it is through cases that statutes are given their specific meaning and, where statutes do not cover an area of law, cases give the primary definitions.
Legal discourse is about authority. This means that decisions are based on previouslyauthorised definitions and interpretations, as given in case law. Legal arguments proceed through citing such case law authorities. Not all cases have equal weight: the court level at which a case is decided is crucial. Thus you must be aware, in making case notes, of the level of the court that made the decision in question. Equally, you must make yourself aware of any subsequent over-rulings, appeals or decisions at a higher level.
The hierarchy of the courts and the doctrine of precedent will be dealt with later in the subject guide. For the moment, you merely need to know that


judges must follow cases decided in superior courts



with only very limited exceptions, judges in the Court of Appeal must follow other previous decisions in the Court of Appeal



in exceptional cases, judges in the Supreme Court may decline to follow their own previous decisions.

The core of the good case note lies in the competent reading of the judgments
(Appeal Court) or opinions (Supreme Court/House of Lords).

4.2.1 Identification of the case
You must note the official citation of the case, so that you or anyone else can find it again. You will usually be making a record from a written source – so note it. Some reports are weekly and tend to emphasise speed rather than correctness. Other reports are monthly or quarterly, etc. Sometimes these reports are checked by the judges concerned, sometimes they are not. Citations are used throughout your subject guides. They are the details at the end of references to cases such as these:


Airedale NHS Trust v Bland [1993] 1 All ER 821



Woollin [1999] 1 Cr App R 8.

Your case note should include:


The names of


the parties



the judges (so that the decision can be placed in relation to the seniority and authority of the judge)



(optionally) the solicitors/barristers acting for the parties.

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

The date (so that the decision can be placed in the stream of development of an area of law).



The court (so that the decision can be immediately located in the hierarchy of the courts). 4.2.2 Content of the case
You must then note


The material facts of the case.



The procedural history of the case – in which courts has the case been heard in before, if any?



The ratio† of the case, putting it into your own words to ensure you understand it.



Every judgment or opinion in the case (NB: in some instances there may be only one judgment).



This note must include:



the reason for the decision reached by the individual judge





the decision reached by each individual judge

whether the individual judgment/opinion falls into one of the following categories: majority, minority, leading or dissenting judgment/opinion.

An overall summary of the majority decision (there are invariably several judges in appeal cases and these tend to be the cases determining important aspects of the law). This summary should:


draw out similarities between judgments



state how many of the judges reached their decision for the same reasons



indicate where there were differences between the majority judgments.



An overall summary of dissenting judgments and whether you think the argument put forward by any dissenting judge is important. Often in English courts the dissenting judgments of leading judges in the Court of Appeal become the rationale for a change in the law by the House of Lords.



An overall view of whether the case is a strong case in terms of the doctrine of precedent: 

Only when the majority of judges agree on both the outcome and the reason for outcome can it be said that the precedent created is strong.



This does not affect the decision between the parties in the actual case. If the plaintiff won, she still wins. However, agreement on outcome and reason for outcome affects the potential usefulness of the case, according to the doctrine of precedent. A weak precedent is one where there is no general agreement as to the reason for the outcome. This is an important issue and one illustration of why it is not enough to know just the outcome of the case.

Finally, the case note is meant to be usable, and as you may collect many of them during your studies, it must be brief! Some of the cases in the law reports that you will be noting may be two or three pages long, but some could be 50 or 80 pages or longer. A summary case note should ideally be only a page or two in length. You need to make tactical decisions about what to include and what to exclude. This is one of the techniques that you will develop the more cases you read and the more case notes you write.

†

In English law you must know the reason for deciding the case
(the ratio decidendi).

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4 Case notes and essay writing

4.2.3 Identifying arguments
Reading cases also introduces you to the different practical methods the judiciary use to create arguments, so you need to know something about how to identify arguments. It is not necessarily appropriate, for example, to just summarise the judgment or opinion in the order that you read it in the text. The judge may speak in a circular way, and make comments useful for the litigants, but not necessarily relevant to a lawyer summarising the case.
In many of your subjects your textbook writers, or even the compilers of your casebooks, will give you a summary of the case in the text. You can also buy materials and books that claim to give you pages of small case notes. All these have their place, but cannot substitute for knowing how to competently produce your own case notes.

4.2.4 A sample case note
Look up R v Duncan and others [1944] KB 713 and read the case. What follows is a suggested case note.
R v Duncan and others [1944] KB 713
Court of Criminal Appeal
10 June 1944
Viscount Caldecote C.J., Oliver and Birkett JJ.
Procedural history: Duncan and others were convicted by Central Criminal Court on 31
March 1944. Duncan and others appealed to the Court of Appeal.
The facts of the case: Duncan was a professional spiritualist ‘medium’ who – for a fee – gave séances. She was accused of ‘conjuring’ spirits fraudulently under s.4 of the Witchcraft Act,
1735.
Ratio of the case: Although not laid out in the way that All ER reports are, where the ratio is indicated by the word ‘HELD’, the ratio of Duncan is ‘“Any kind of...conjuration” in
s.4 of the Witchcraft Act 1735, does not refer exclusively to the calling up of evil spirits.
Therefore, it is an offence under the words of that section to “pretend to exercise...any kind of...conjuration”, to pretend to call up the spirits of deceased persons to appear to or communicate with living persons. The appellant, a spiritualist “medium” offered to give a demonstration of her powers at the trial under the usual conditions observed during such demonstrations. The judge, in rejecting this evidence, had exercised his discretion rightly.’
Summary of Caldecote CJ’s reasoning: Caldecote CJ dealt with two main points in his judgment. He argued that the trial judge was correct to allow the appellant to produce evidence in court that she could ‘materialise’ spirits. His argument seems to be one that focuses on the practicalities involved: if, for sake of argument, a spirit had been produced, would jurors be allowed to touch it or somehow verify that it was a spirit? What would it mean to ‘verify’ a spirit? Furthermore, would jurors have to experience the manifestation in the same circumstances as a séance, i.e. in ‘dim light’? The fundamental problem was thus determining how such a manifestation could be conducted in court, and, indeed, if it could, what it would be evidence of? It would also appear that the jurors themselves did not want to experience a manifestation in court.
The second point that Caldecote CJ dealt with relates to the meaning of s.4 of the Act.
This relates to the first point explained above. Duncan was charged with the ‘pretence’ of conjuring spirits, i.e. she was accused of fraudulently manifesting spirits. Presumably if she had manifested a spirit to the satisfaction of the court, then this would have shown that it was not a fraudulent pretence. Caldecote CJ’s approach to the interpretation of the
Act begins by putting it in its historical context. He stresses that a very early statute, 33
Henry 8, c. 8, does not make reference to evil spirits. It would appear that ‘evil spirits’ was introduced by 5, Eliz. c. 16 when speaking of 33 Henry; and the word was repeated in Jac.
I, c. 12. Section 4 of the Witchcraft Act does not make reference to evil and wicked spirits, but refers to ‘conjuration’. Caldecote CJ’s argument is thus fairly clear: he rejects the submission of counsel for the appellants that the Act refers only to evil spirits. Caldecote CJ also shows that the Witchcraft Act was enacted at a time when belief in spirits was being questioned, so a distinction between conjuring evil spirits and conjuring spirits would

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University of London International Programmes not be a sensible way of interpreting the Act. He also stresses that the offence is one of
‘pretence’ of fraud; of deceiving people. It would seem then, that Duncan had been rightly convicted. 4.2.5 How you will be assessed on case noting
Part A of the examination addresses case finding and reading skills. You will be asked during the year to locate a case and to write a case note on it. The sample Part A question below is based on the idea that you have been asked to locate R v Duncan at the beginning of the academic year.
You should find and download the case, read it carefully and prepare your case note. The examination will ask you certain questions about your understanding of the case that reflects the information contained in the case note, and your broader understanding of the arguments in the case.
Note: the Sample examination question below is the unseen element of Part A. You are not being asked to make a case note on R v Butterwasser. As you will see, the point of this part of the question is to test your comprehension of the law. R v Butterwasser is a case to which you are coming ‘blind’ and the relevant part of the judgment is reproduced in the question itself. The only way that you can prepare and practice for this kind of question is to read cases and to make case notes on them; so that, when you are confronted with this kind of question in the examination, you are comfortable with reading, summarising and commenting on case law.

Sample examination question
Question 1
a. Summarise the ratio of R v Duncan. (5 marks)
b. Summarise Caldecote CJ’s reasoning. (10 marks)
c. Do you agree with the judge’s reasoning? (5 marks)
d. Read the passage below from R v Butterwasser and answer the question below it. (5 marks)
Lord Goddard CJ
We have to consider whether what was done in this case was in accordance with law...
It is elementary law that ever since it became the practice, as it has been for the last one hundred and fifty or two hundred years, of allowing a prisoner to call evidence of good character, or where he has put questions to witnesses for the Crown and obtained or attempted to obtain admissions from them that he is a man of good character, in other words, where the prisoner himself puts his character in issue, evidence in rebuttal can be given by the prosecution to show that he is in fact a man of bad character. Evidence of character nowadays is very loosely given and received, and it would be as well if all courts paid attention to a well-known case in the Court of Crown Cases Reserved, Reg. v.
Rowton, in which a court of twelve judges laid down the principles which should govern the giving of evidence of character and of evidence in rebuttal of bad character. It was pointed out that the evidence must be evidence of general reputation and not dependent upon particular acts or actions. But however that may be, there is no case to be found in the books - and it is certainly contrary to what all the present members of the court have understood during the whole of the time they have been in the profession - that where the prisoner does not put his own character in issue, but has merely attacked the witnesses for the prosecution, evidence can be called for the prosecution to prove that the prisoner is a man of bad character.

If a defendant (a prisoner) attacks the character of a prosecution witness, can the prosecution introduce evidence of the defendant’s bad character to the court?

Sample responses
a. Duncan is an authority on s.4 of the Witchcraft Act. It also holds that the trial judge had not erred in using his discretion to prevent the appellants from materialising a spirit in court.

Common law reasoning and institutions

4 Case notes and essay writing

b. Caldecote CJ’s argument seems focused on the practicalities involved in the case.
If Duncan had been allowed to materialise a spirit, what would it have proved?
Given that the séance took place in near darkness, would these conditions have to be reproduced in the court. How would the jurors be able to determine whether or not Duncan had actually ‘manifested’ a spirit? The judge was correct to use his discretion and not allow such evidence to be produced in court. Caledcote CJ also dealt with the meaning of s.4 of the Act. He returned to a very early statute, 33
Henry 8, c. 8 that does not make reference to evil spirits. It would appear that ‘evil spirits’ was introduced by 5, Eliz. c. 16 when speaking of 33 Henry; and the word was repeated in Jac. I, c. 12. Section 4 of the Witchcraft Act does not make reference to evil and wicked spirits, but refers to ‘conjuration’. The Chief Justice’s argument is thus fairly clear: he rejects the submission of counsel for the appellants that the Act refers only to evil spirits.
c. Caldecote CJ’s reasoning is convincing. As far as the practicalities of producing a spirit in court are concerned, the difficulties such a course of action would bring with it suggest that refusing to allow Duncan to materialise a spirit was the only sensible solution to the problem. Caldecote CJ also produces a convincing argument that s.4 of the Witchcraft Act has to be interpreted as relating to the fraudulent ‘conjuring’ of spirits. Duncan’s argument that the Act only refers to evil spirits is somewhat peculiar. Caldecote CJ shows that the Witchcraft Act was enacted at a time when belief in spirits was being questioned, so a distinction between conjuring evil spirits and conjuring spirits would not be a sensible way of interpreting the Act. He also stresses that the offence is one of ‘pretence’ of fraud; of deceiving people. It would seem then, that Duncan has been rightly convicted.
d. According to Lord Goddard, when a defendant either gives evidence to the court that he is of good character, or where he has tried to elicit evidence of his good character from witnesses for the prosecution, the prosecution can give evidence that shows that the defendant is a man of bad character. The key authority, R v Rowton, determines that the evidence must be general in nature. However, where a defendant does not give evidence of character, but attacks the character of the witness for the prosecution, the prosecution cannot give evidence of the defendant’s bad character.

Advice on answering the questions
The sample questions reflect the fact that Duncan is a rather short case; you should expect to read a longer case, with both majority and dissenting judgments (see the material on case noting above). Part A questions will also ask you to think about the way in which the judge’s argument works.
This is primarily an exercise in comprehension. The Examiners are not looking for sophisticated analysis or a wider knowledge of the law. The point of Part A is to test your ability to read and comprehend. The only way to prepare for this part of the examination is to read and make case notes on as many cases as possible. As you will become aware as you read this subject guide, you are required to make case notes on the central cases. Thus, in so doing, you are effectively practicing the skills assessed in Part A. It is also worth stressing that Part A questions are not on the doctrine of precedent. Part A questions are focused on a reading of a particular case. For example, if there are majority and dissenting judgments, you might be asked to summarise them, and explain why you prefer one to the other.

4.3 Essay writing
Essay writing is a technique. Rather than reflect on essay writing in general, the best way to approach this concern is to consider a specific essay. What follows is an attempt to show the processes involved in writing well about a particular question.
Essay writing can be split into a five stage process:
a. focus on the question

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b. identify the key terms and the key resources
c. use your research
d. from information gathering to writing
e. plan and structure your answer.
Stages (b) and (c) have been made more straightforward for you by providing abstracts of the relevant articles, statutes and cases.
Remember that if you are writing in examination circumstances you are relying on the work you have done during the term and committed to memory to cover stage (c) and part of stage (d) above.
Please bear in mind that it takes time and practice to master these techniques.
You need to work slowly and carefully; but, once you have mastered them, you will increase in your confidence as an independent thinker. You will also find that you can write on an unseen question more quickly. It is essential to realise, though, that this skill can only be acquired through time and practice. Do not become frustrated; keep practising. 4.3.1 Focus on the question
Consider the following question:
‘The Human Rights Act 1998 has completely redefined the role of the Law Lords.
Appellate judges have become political. They are now effectively legislators.’
Discuss.
The first stage in writing an essay is to ensure that you understand what the question is asking you.
You must remember that you are trying to frame a response to the question; an argument or a thesis. In other words, you are not simply trying to ‘find out’ as much about the question as you can. You are certainly not writing out your notes, in the hope that the more material you can put down on paper, the more marks you will get.
An essay is an argument; ‘discuss’ is an invitation to make an argument. An argument must have a clear central thesis that it goes on to defend. In other words, you are attempting to create a structured response to the question asked that uses evidence drawn from a variety of sources to defend your central thesis. What you find out about the subject-matter of the question must ultimately relate to the argument that you are trying to make.
Crudely, we could say that on reading the question, and in understanding its basic terms, you come up with a ‘working thesis’. Your working thesis is your basic response: do you broadly agree or disagree with the point that the question is raising?
As your working thesis will be subject to revision as you go through the research process, you must be prepared to modify and adapt it; perhaps even to change it completely. At the earliest stages in the research process (i.e. when you first read and think about the question) your working thesis is based on what you know about the
English legal system, and the topic in question.
You need to be aware that you are being asked to make a judgement. Some judgements are better than others, and some judgements are simply wrong. The ability to judge an area depends – at least in part – on your knowledge of the area.
How could we frame our working thesis in relation to the question that we have been asked above? You must begin by reading the question. Note the precise terms that the question uses. The question above is very specific. It uses the expression ‘completely redefined’. In other words, it is asserting that the HRA has completely changed the role of the judge. It is asking you to think about the claim that the HRA has made the
Law Lords political. In answering this part of the question, you need a thesis on this particular point. Do you agree or do you disagree with this statement? The issue of the political role of the judge is linked to a claim that judges have now become legislators.

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Again, you must ask yourself: do you agree or disagree with this statement? In what senses do judges legislate? Your thesis must cover both these main points.
In order to make the process of thinking about this question clearer, we will proceed on the following basis. Our thesis will be that the HRA has not made the judges political and that since the HRA judges have not assumed the role of legislator. This thesis is based on an understanding of the texts and resources that will be discussed below. It would, of course, be possible to come up with a different response to this essay. However, in order to model the process of thinking and writing, the thesis outlined above will be the one that guides us.
There are clearly many factors at play; these are complex issues. One of the skills that you will acquire over time is the ability to weigh and judge different factors. The ability to weigh and judge depends on the extent of your reading, the time you have spent thinking about the issues and your understanding of the subject area. It is a skill that comes with time.

4.3.2 Identify the key terms and the key resources
Let us return to our working thesis. There are a couple of matters outstanding. There are at least two key concepts in the question:


what does political mean?



what is at stake in claiming that the Law Lords are now legislators?

At this point we have to make a distinction between understanding the terms and the definitions that are necessary for our argument. It is necessary to make a distinction between what one has to understand but not necessarily define in the essay, and the terms that should be defined to build the argument that the essay is presenting.
The terms in this question that must be understood, but not necessarily defined are:
The HRA, The Law Lords.
The important point to note is that the Law Lords sit in the Supreme Court and are responsible for the development of the law; we are not concerned then with judges in the trial courts. The essay concerns the development of law at the highest level. A definition of the Law Lords is not central to the development of the essay. We clearly need to know who they are, and to understand that we are dealing with senior members of the judiciary; however, given the word limit and the need for focus, a definition is not necessary.
The terms in this question that must be defined: the politics of the judicial; what does it mean to claim that judges are or are not legislators?
Given the terms of the question, and the implicit link between politics and legislation, this seems to be the focus of the answer. You will see below in the sample essay that it does not begin with a definition; it begins with a statement of its argument. The definition of political, and other terms, comes later in the argument.
The question suggests that political might mean ‘partial’ – or no longer neutral. As we will see, it would be hard to argue, however, that judges now simply decide cases on political grounds, as opposed to legal grounds. Therefore, the argument must mean
‘political’ in a slightly different sense. How can we be precise?
Defining political will be one of the key tasks when we look at the extracts below. We also need to work out what it means to claim that judges are now legislators.

4.3.3 Use your research
What follows are a series of exercises that guide you through the research process. You will see that we have provided a variety of materials and a set of questions on them
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Please write your own responses to the questions. You will thus build up a body of notes which you can then use to develop your argument. Remember, there is a distinction between gathering information, processing it (thinking about it in the light of the question that you have been asked and making notes) and the actual activity of writing itself. You cannot ‘blur’ these different stages. Each requires specific skills.
For the moment, then, we are going to gather information and think about it, in a way that is guided by the extracts and questions below.
The extracts are ordered in a particular way. They start with a general overview provided by Gearey et al. A good place to start preparing an essay is with a resource that offers something of a historical and contextual overview of the field you are researching. This will orientate you to some general themes, and might also provide basic materials for your thinking on the question.
The extracts then focus on some more specific issues. As mentioned above, our response to the question requires us to examine some very precise matters. The questions on the extracts are relevant in two senses. Some of the questions draw your attention to general concerns that will allow you to understand the broader context of the area. Others might be more directly relevant to the essay itself. In answering the questions, you will thus build up a body of information: some of it will be directly relevant to the essay. Other matters on which you have made notes might not be.
This is simply part of the process of research. You must be prepared to ‘filter’ the information that you have gathered, and separate information that is directly relevant from that which allows you to gain a general understanding.
The extracts have been edited to make the task slightly easier. As far as this exercise is concerned, the questions on the extracts will help you to stay focused. However, you will still need to re-read your notes when you come to start writing the essay, as some of the questions raise issues of general concern which might not be directly relevant to the essay.
There are seven extracts and instructions for reading below. They are:


Extract A: Gearey et al., Chapters 10 ‘The politics of the judiciary revisited: rights, democracy, law’ and 11 ‘Judges and democracy’.



Extract B: An extract from the White Paper: Rights brought home. (‘White papers are documents produced by the Government setting out details of future policy on a particular subject. A White Paper will often be the basis for a Bill to be put before Parliament. The White Paper allows the Government an opportunity to gather feedback before it formally presents the policies as a Bill.’ See www. parliament.uk/site-information/glossary/white-paper/) 

Extract C: An extract from the HRA.



Extract D: An extract from Sir John Laws’ essay ‘Is the High Court the guardian of fundamental constitutional rights?’ (This is an example of extra-judicial writing by a judge.)



Extract E: An extract from a case: Jackson v A-G [2005] UKHL 56. (This is a primary source; the other primary source would be statute.)



Extract F: An extract from Danny Nicol’s essay ‘Law and politics after the Human
Rights Act’. (This is an academic commentary on the HRA from the journal Public
Law.)



Extract G. An article from the Guardian newspaper by Patrick Wintour.

Follow the instructions below in order to build up a body of notes that will be relevant to the essay question. Answers are not provided to these questions, but they are discussed below in terms of the analysis of the essay.

Extract A


Read Gearey et al., Chapters 10 ‘The politics of the judiciary revisited: rights, democracy, law’ and 11 ‘Judges and democracy’.

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Questions on Chapter 10
a. What does Chapter 10 tell us about Griffith’s idea of the politics of the judiciary and its relevance for thinking about the judiciary today?
b. What is the relevance of the extra-judicial writings of Stephen Sedley, Lord Steyn and Sir John Laws for understanding the politics of the judiciary?
c. The chapter discusses the relevance of a number of post-1998 cases for an understanding of the politics of the judiciary. What are these cases, and what do they tell us about judicial politics?
d. What is the significance of the Belmarsh case for thinking about the politics of the judiciary?
e. What is the relevance of the idea of democratic dialogue for thinking about the politics of the judiciary?
Questions on Chapter 11
a. What does the second part of the chapter, ‘The judge and the limits of the law’, tell us about judicial law making? How does this theme relate to the idea of democratic dialogue explained in Chapter 10?
b. What does the judicial law making tell us about the contemporary politics of the judiciary? Extract B
An extract from the White Paper: Rights brought home.
Although the courts will not, under the proposals in the Bill, be able to set aside Acts of the United Kingdom Parliament, the Bill requires them to interpret legislation as far as possible in accordance with the Convention. If this is not possible, the higher courts will be able to issue a formal declaration to the effect that the legislative provisions in question are incompatible with the Convention rights. It will then be up to the Government and
Parliament to put matters right. The Bill makes a ‘fast-track’ procedure available for the purpose of amending the law so as to bring it into conformity with the Convention.
[...]
1.18 We therefore believe that the time has come to enable people to enforce their
Convention rights against the State in the British courts, rather than having to incur the delays and expense which are involved in taking a case to the European Human Rights
Commission and Court in Strasbourg and which may altogether deter some people from pursuing their rights. Enabling courts in the United Kingdom to rule on the application of the Convention will also help to influence the development of case law on the
Convention by the European Court of Human Rights on the basis of familiarity with our laws and customs and of sensitivity to practices and procedures in the United Kingdom.
Our courts’ decisions will provide the European Court with a useful source of information and reasoning for its own decisions. United Kingdom judges have a very high reputation internationally, but the fact that they do not deal in the same concepts as the European
Court of Human Rights limits the extent to which their judgments can be drawn upon and followed. Enabling the Convention rights to be judged by British courts will also lead to closer scrutiny of the human rights implications of new legislation and new policies. If legislation is enacted which is incompatible with the Convention, a ruling by the domestic courts to that effect will be much more direct and immediate than a ruling from the
European Court of Human Rights. The Government of the day, and Parliament, will want to minimise the risk of that happening.
1.19 Our aim is a straightforward one. It is to make more directly accessible the rights which the British people already enjoy under the Convention. In other words, to bring those rights home.
[...]
2.13 The Government has reached the conclusion that courts should not have the power to set aside primary legislation, past or future, on the grounds of incompatibility with the

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Convention. This conclusion arises from the importance which the Government attaches to Parliamentary sovereignty. In this context, Parliamentary sovereignty means that
Parliament is competent to make any law on any matter of its choosing and no court may question the validity of any Act that it passes. In enacting legislation, Parliament is making decisions about important matters of public policy. The authority to make those decisions derives from a democratic mandate. Members of Parliament in the House of Commons possess such a mandate because they are elected, accountable and representative. To make provision in the Bill for the courts to set aside Acts of Parliament would confer on the judiciary a general power over the decisions of Parliament which under our present constitutional arrangements they do not possess, and would be likely on occasions to draw the judiciary into serious conflict with Parliament. There is no evidence to suggest that they desire this power, nor that the public wish them to have it. Certainly, this
Government has no mandate for any such change.

According to the White Paper, what is the point of domesticating human rights?

Extract C
An extract from the HRA.
2 Interpretation of Convention rights.
(1) A court or tribunal determining a question which has arisen in connection with a
Convention right must take into account any—
(a) judgment, decision, declaration or advisory opinion of the European Court of Human
Rights,
(b) opinion of the Commission given in a report adopted under Article 31 of the
Convention,
(c) decision of the Commission in connection with Article 26 or 27(2) of the Convention, or
(d) decision of the Committee of Ministers taken under Article 46 of the Convention, whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.
[...]
3 Interpretation of legislation.
(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
(2) This section—
(a) applies to primary legislation and subordinate legislation whenever enacted;
(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.
4 Declaration of incompatibility.
[...]
(4) If the court is satisfied—
(a) that the provision is incompatible with a Convention right, and
(b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility, it may make a declaration of that incompatibility
[...]
(6) A declaration under this section (‘a declaration of incompatibility’)—
(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given

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[...]
6 Acts of public authorities.
(1) It is unlawful for a public authority to act in a way which is incompatible with a
Convention right.
[...]
10 Power to take remedial action.
(1) This section applies if—
(a) a provision of legislation has been declared under section 4 to be incompatible with a Convention right...
[...]
(2) If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility.

How do these sections of the HRA correspond with the objectives laid out in the
White Paper?

Extract D
An extract from Sir John Laws’ essay ‘Is the High Court the guardian of fundamental constitutional rights?’
In other jurisdictions the title of this paper would be regarded as nothing more than an invitation to answer a question too obvious to be worth asking. In the United States, the civil law countries, and in Commonwealth jurisdictions possessing written constitutions the supreme courts are a bulwark of fundamental rights which, where the court’s writ runs and where its authority is respected, are not allowed to be subverted. In our own jurisdiction, it is a commonplace to hear calls for a Bill of Rights or a written constitution. No doubt as a judge I should not enter into the politics of such a question; nor, for my purposes, is it necessary to do so; what I am interested in is another question altogether. It is whether, without recourse to legislative constitutional change, the common law is today able to accord a priority to fundamental rights comparable to their entrenchment in written sets of norms, and to do so by means of the development of principles by the methodology which has always characterised the common law: that is by incremental decision-making in which apparently new principles belong to a continuum whose starting-point is uncontentious and well-established. I have to acknowledge that this is a large subject; and some of the positions I will take would require more exhaustive treatment to do them justice than I can accommodate within the space of a single article, if its length is to be tolerable.
I do not propose to attempt an exhaustive definition or classification of what should be regarded as fundamental constitutional rights. But it will be a defining characteristic for my purposes, albeit a negative one, of such a right that its source is not statutory; this follows from the fact that my subject is, and is only, the prospective development of the common law. Where Parliament confers a right, the court’s duty, elementarily, will be to enforce it; and, usually at least, this will involve no special difficulty.
[...]
My thesis at the end may be summarised thus:...decision-makers whose decisions affect fundamental rights must inevitably justify what they do by giving good reasons; and the judges should not construe statutes which are said to confer power to interfere with such rights any more favourably than they would view a clause said to oust their own jurisdiction. Indeed such a clause is but an example of a denial of one fundamental right.
I think this is, in the end, a modest way forward, involving no sea-change in the law; but the growth of the common law has always been an incoming tide, not a storm of hurricane force; and it is better so. The tide leaves no wake of destruction when it ebbs. I propose no assertion of undue power by the judges over the elected Executive; and the only real complaint against all this would be in the mouth of someone who asserts that governmental authority, because it is there by popular vote, should possess the power to override fundamental rights without compelling good reason.

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a. What, according to Sir John Laws, is the source of fundamental rights?
b. What is the relationship between Sir John Laws’ notion of fundamental rights, and his understanding of the role of the judge?

Extract E
An extract from Lord Steyn’s judgment in the case of Jackson v A-G [2005] UKHL 56.
71. The power of a government with a large majority in the House of Commons is redoubtable. That has been the pattern for almost 25 years. In 1979, 1983 and 1987
Conservative governments were elected respectively with majorities of 43, 144 and 100.
In 1997, 2001 and 2005 New Labour was elected with majorities of respectively 177, 165 and 67. As Lord Hailsham explained in The Dilemma of Democracy (Collins, London, 1978),
126 the dominance of a government elected with a large majority over Parliament has progressively become greater. This process has continued and strengthened inexorably since Lord Hailsham warned of its dangers in 1978...
102. But the implications are much wider. If the Attorney General is right the 1949 Act could also be used to introduce oppressive and wholly undemocratic legislation. For example, it could theoretically be used to abolish judicial review of flagrant abuse of power by a government or even the role of the ordinary courts in standing between the executive and citizens. This is where we may have to come back to the point about the supremacy of Parliament. We do not in the United Kingdom have an uncontrolled constitution as the Attorney General implausibly asserts. In the European context the second Factortame decision made that clear: [1991] 1 AC 603. The settlement contained in the Scotland Act 1998 also point to a divided sovereignty. Moreover, the European
Convention on Human Rights as incorporated into our law by the Human Rights Act, 1998, created a new legal order. One must not assimilate the ECHR with multilateral treaties of the traditional type. Instead it is a legal order in which the United Kingdom assumes obligations to protect fundamental rights, not in relation to other states, but towards all individuals within its jurisdiction. The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant
House of Commons cannot abolish. It is not necessary to explore the ramifications of this question in this opinion. No such issues arise on the present appeal.

What is Lord Steyn’s view of the relationship between the sovereignty of Parliament and the common law?

Extract F
An extract from Danny Nicol’s essay ‘Law and politics after the Human Rights Act’.
Even before the advent of the Human Rights Act 1998, a vision of the judicial role had come to the fore in the United Kingdom which presented law as forming the cordon within which politics is allowed to take place. According to this narrative politics is an activity where the passions hold sway, so it must be tamed and conducted within the straitjacket of law. The courts, as custodians of civic virtue, will ensure that fundamental rights are off-limits to our elected representatives, thereby delineating the boundaries of a rights-based democracy.
In so doing, they are not taking governmental decisions but rather controlling the legality of those decisions by enforcing a higher-order law. Law is thus a distinctive concept, serving as bulwark between governors and governed, excluding arbitrary rule. In Jackson v HM Att.Gen. P.L. 723 two, possibly three, Law Lords proffered some support to this imagining of the judicial role. This article sets out to challenge it. Arguing that the depiction of law as setting the framework for governance fails to provide a compelling portrayal of the interaction between judges and politicians, it will contend that this relationship is one in which the division of competences, rather than being definitively determined by ‘the law’, ebbs and

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flows with the respective assertiveness of judicial and elected officials. More broadly, the representation of law-as-cordon underestimates the blurring of the two roles. Against this backdrop, the article advances an alternative normative prescription for constructing the interaction between courts and politicians which, it will be argued, strikes a more attractive balance between democracy and fundamental rights.

Nicol offers two views of the politics of the judiciary; what are they, and which one does he prefer?

Extract G
Read the article from the Guardian newspaper by Patrick Wintour (2011) at www. guardian.co.uk/law/2011/feb/16/bill-of-rights-review-imminent-david-cameron What is the Coalition Government’s approach to the HRA?

4.3.4 From information gathering to writing
Writing begins with thinking about both the structure of the essay and the information that you have gathered. In writing an essay you organise your notes into a different form: not so much a loose set of responses to texts and documents as a clearly-organised response to a specific question.
Your introduction should state your key thesis (i.e. what you think about the precise question that you have been asked).
Reflecting on your answers to the questions above, you might now have a much clearer sense of the history and context of judicial politics. A great deal of the information from the Gearey et al. chapter is not going to be relevant because the essay is focused on the period after 1998, and Chapter 10 of Gearey et al. is much broader in scope. You might sense, however, that the arguments from Lord Scarman,
Sir John Laws, Danny Nicol, Owen Fiss and Lord Steyn are directly in focus. Young’s notions of dialogue, summarised in Chapter 10 of Gearey et al., can usefully build on some of the ideas that come out of Nicol’s essay. The arguments made by Lady Justice
Hale and Lord Justice Hope, discussed in the last section of Chapter 10 of Gearey et al., are also relevant; they provide a clear sense of judicial politics, and an understanding of the debates around the HRA.
We now need to frame our main thesis. Note that the question appears to break into two parts, and we need to respond to both of them:
‘The Human Rights Act 1998 has completely redefined the role of the Law Lords.
Appellate judges have become political. They are now effectively legislators.’
Discuss
In the light of the Gearey et al. chapter it would be hard to argue that the judiciary were never political. The chapter suggests that – following Griffith’s thesis – judges have always been political. What has happened since the HRA is perhaps a reframing of judicial politics around issues of human rights. Jackson is evidence of this, as are the other cases that the Gearey et al. chapter discusses. We have also looked in detail at an extract from Jackson. Note carefully Lord Steyn’s argument. He does not suggest that the courts have the power to overrule Parliament or strike down Acts of Parliament.
This would clearly be going beyond what Parliament intended, as we have seen from the White Paper. So, we could perhaps conclude that the HRA has not produced a political judiciary; it has, however, changed the nature of judicial politics around human rights issues. The idea of the dialogue between the judiciary and Parliament elaborates this idea. Does this mean that the judiciary has assumed more power than
Parliament intended? Although it is hard to say exactly what Parliament intended, the
HRA clearly enhanced the power of judges. Jackson is perhaps also evidence that the
Law Lords are careful not to go beyond the limited terms of the Act, but note that Lord
Steyn does (at least to some extent) leave this issue open and Lord Hope is well aware of the ‘dangers of Parliamentary sovereignty’.
The Belmarsh case is also important for our analysis at this stage. Note the ratio of the case. The Law Lords are careful to respect the power of the Home Secretary, but

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We also need to deal with the politics point. We can use some of Nicol’s and Young’s ideas. Remember that Nicol argued that, under the HRA, judges are not taking governmental decisions but rather controlling the legality of those decisions by enforcing a higher-order law. Law is thus a distinctive concept, serving as bulwark between governors and governed, excluding arbitrary rule.

In this view, similar in some respects to that of Sir John Laws, the politics of the judiciary serves to ensure government according to the law. However, remember also that Nicol slightly amended this view. He argued that law is not so much a ‘framework for governance’ as a shifting ‘relationship’ between different ‘competences’ which
‘ebbs and flow[s] with the respective assertiveness of judicial and elected officials.’
Nicol’s notion of judicial politics thus suggests that there is a certain vagueness over where power lies. Rather than suggesting, though, that the judges have exceeded the powers given to them under the HRA, Nicol’s argument suggests that the HRA is redrawing the boundaries that exist within the current constitutional framework.
Young attempts to define the boundary by distinguishing between contestable and non-contestable rights. Judicial legislation on the latter is acceptable (note Tomkins’ arguments move in a similar direction, although he denies the relevance of the idea of dialogue). Fiss’ theory of judicial deference is also relevant to our analysis. It provides further detail on Young and Nicol’s notions of dialogue. Fiss suggests that although judges legislate, their power of legislation is correctly limited: in part by the constitutional position of the judges; but also because the judges themselves practice deference. Thus, any dialogue between judges and Parliament is a dialogue between a
‘junior’ and ‘senior’ partner. What defines judicial law making is precisely the fact that it is limited.
These ideas can be organised into the following opening paragraph:
Although it would be difficult to determine quite what Parliament intended the judges to do with the HRA, it would be wrong to argue that the Act has itself produced a political judiciary; it would also be wrong to argue that the judges have assumed more power than
Parliament intended.

This paragraph tells the reader exactly what the writer thinks. It is a direct response to the question that has been asked.
A second paragraph then extends our argument a little further:
The HRA appears to be producing a realignment in the Constitution of the United
Kingdom. The Human Rights Act of 1998 was meant to redress the balance between the courts and Parliament. The Act allows judges to protect human rights against executive power. The difficult question is: has judicial power now begun to trespass on the power of
Parliament to such an extent that the actions of the judges are beyond what Parliament intended? The judges have indeed argued that they should be less deferential to
Parliament, and more willing to use their enhanced powers to protect human rights. It might be that this goes beyond what the sponsors of the Act thought would happen; but, then again, the White Paper Rights brought home was aware that Parliament had become too powerful and had, on occasions, not governed within the law. However, even if one acknowledges judicial law making, it would be wrong to see this as extending beyond a rather limited remit. The dialogue between Parliament and the courts is most definitely one where the judges acknowledge the supremacy of the former.

A good essay will tell the reader what to expect in terms of the argument to follow.
This will, obviously, reflect the structure of the argument. One must therefore be working from a plan. The next section of this subject guide will outline the plan/ structure of the argument. To give some sense of what we are doing, though, here is the third paragraph of the essay.

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This essay will begin with a discussion of the idea of the politics of the judiciary. It will then examine some of the most important cases in which issues of judicial politics have been raised. A penultimate section will address arguments that the judges have exceeded their powers, and argue that such arguments are contentious and do not enjoy universal support.
The essay will conclude by suggesting that the HRA has initiated a dialogue between the courts and Parliament that on the whole benefits the development of British democracy.

Note that the paragraph outlines the structure of the argument, and concludes with a point that hopefully returns to (and generalises on) the key theme of the question.
It does not deal with all the points that we want to talk about but outlines the main terms of the argument. The last sentence suggests that rather than throwing out the balance between the courts and Parliament the HRA is a positive measure that enhances the rule of law.

4.4 Summary for planning an essay and an opening paragraph
Begin by asking yourself: Do I agree or disagree with the statement that the question makes? Then ask yourself why. Answering the ‘why’ will take you to the material relevant to the question. This will allow you to build your argument.
In relation to questions that ask you to ‘critically discuss’, or even ‘in what sense’ or ‘to what extent’, you must be able to state your basic position and then defend it. This is, therefore, simply a different way of asking you to discuss a question.

4.4.1 Plan and structure your answer
You cannot begin to plan your answer until you have both completed the information gathering part of the exercise, and constructed your main thesis. The plan of the essay builds the main thesis, and also points towards the organisation of your actual essay. Your essay must be a coherent development of an argument that has a clear introduction and conclusion. Every sentence that you write must build your argument and respond directly to the question that you have been asked. The structure of your argument follows the logical development of your key thesis. A rough plan of the structure could be:
a. Consider the definition of politics; use material from Sir John Laws and Nicol.
Note: When you define politics, remember that the definition is useful within the terms of the essay. Our definition of politics must not become too distracted with general issues. Drawing on our sources, we want to say that:
Ever since JAG Griffith drew attention to the politics of the judiciary, most commentators have accepted that political opinions do inform judicial decision making. This does not mean that judges are politically partisan to the extent that they favour one side to another; rather, that political values feed into and influence the way that judges decide cases. It would be fair to argue that since the HRA, certain Law Lords have seen their tasks in terms of the protection of human rights. This is political to the extent that it means that the judges have to follow the terms of the HRA. As Nicol suggests, it might be most accurate to see judges now engaged in dialogue with Parliament. Although this dialogue suggests something of a realignment of the relationship between the courts and Parliament, it does not suggest that the judges now see their role as enforcing human rights against Parliament.

b. Use the material from Gearey et al. on key cases post-HRA; also make reference to
Lord Steyn in Jackson; make use of Fiss’ account of judicial reasoning.
Gearey et al. provides an overview of the important cases decided under the HRA. As well as Jackson, this line of cases includes R (on the application of ProLife Alliance) v BBC,
Director of Public Prosecutions of Jamaica v Mollison, Anufrijeva and the Belmarsh case. In discussing this material it is important to remember why you are discussing it. Given the terms of the question (and the word limit) a summary of the facts and law in the cases is not relevant. You are discussing the cases in terms of the information they provide about judicial politics. You must therefore consider general themes within the context of the question. We want to use this sample of cases to show that the judges

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HRA.
It would also be possible to perhaps focus on a single case, in order to illustrate a general theme. Lord Steyn’s argument in Jackson might lend itself to such a discussion.
c. Engage with general debate; review arguments that judges have exceeded their powers; use Lord Scarman’s arguments. Argue that the judges have not exceeded their powers.
Extract G above gives us some sense of the arguments that the HRA has shifted the balance towards the judges in a way that impacts negatively on British democracy. It also gives us a sense that these arguments are contentious and do not enjoy universal support. When we discuss these points we have to remember what we are trying to argue. We are not offering points for and against the proposition, rather we are attempting to persuade the reader that it is correct to disagree with the points raised by the question. In other words, our argument has to ‘take sides’. We need to argue that the points raised by David Cameron and Dominic Grieve are wrong: judicial decisions on prisoners’ rights do not suggest that the judges have gone too far or have exceeded their powers under the Act. In granting prisoners’ rights, the courts are putting into effect a ruling of the ECtHR: they are using their powers under the
HRA. Lord McNally’s comments reflect the fact that these arguments are somewhat contentious; they also appear to back up Nicol’s point: the dialogue between the courts and Parliament has shifting boundaries.
We could link this with Lord Scarman’s arguments. He gave us some sense of the constitutional context and the deep seated problems with the constitution where there are insufficient checks on Parliament. We could borrow from Lord
Scarman’s position to suggest that the HRA provides an important realignment of the constitution precisely in those areas where appeals to popular sentiments could be used to limit civil liberties. This would support our argument that the judges are elaborating the basic idea of the HRA: they are ‘bringing rights home’.
d. Conclude essay; remind the reader of key thesis.
Note how (a)–(d) above give us the sense of discretely organised points that build on each other and show the reader why you have asserted the opening statement of your essay. Above we said that a good essay has an introduction that begins by stating the main thesis. The introduction must do more than this. It must also outline the argument that the reader can expect. The essay itself is a coherent development of the argument that must keep the key thesis constantly in mind. A good essay also has a conclusion that reminds the reader of the key thesis that has been put forward, and returns to the terms of the question.

4.5 Bringing it all together: sample essay
‘The Human Rights Act 1998 has completely redefined the role of the Law Lords.
Appellate judges have become political. They are now effectively legislators.’
Discuss.
This essay will argue that whilst the HRA has given the Law Lords power to develop human rights law, it has not completely redefined their roles. However, it would be fair to suggest that the HRA has to some extent redefined the relationship between the judges and Parliament. It is worth stressing that judges remain subordinate to Parliament. Their power to develop the common law does not mean that they have become legislators. The argument will develop as follows. After defining the political role of the judiciary, the essay will examine a number of key cases.
Ever since JAG Griffith drew attention to the politics of the judiciary, most commentators have accepted that political opinions do inform judicial decision making. This does

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not mean that judges are politically partisan to the extent that they favour one side over another; rather, that political values feed into and influence the way that judges decide cases. Judges are also political to the extent that they uphold the rule of law. If this means that they have to ensure that Government must act within the law, we could say that they are acting politically. It would be fair to argue that since the HRA, certain
Law Lords have seen their tasks in terms of the protection of human rights. As Nicol and others have suggested, it might be most accurate to see judges now engaged in dialogue with Parliament. Although this dialogue suggests something of a realignment of the relationship between the courts and Parliament, it does not suggest that the judges now see their role as enforcing human rights against Parliament.
So, even if one acknowledges the political function of judicial law making, it would be wrong to see power as extending beyond a rather limited remit. The dialogue between
Parliament and the courts is most definitely one where the judges acknowledge the supremacy of the former. Scholars like Young and Fiss have sketched out the correct province of judicial legislation. It involves deference to Parliament, and a remit that extends, in Young’s terms, only to non-contestable rights that are the proper province of the courts. A contestable right is a ‘watershed’ issue and best left to the legislature to resolve. The judges claim that in protecting human rights and ensuring rule of law, they are largely within the sphere of constitutional competence given to them by Parliament: dealing with non-contestable right. They are putting into effect what Parliament asked them to do when it passed the HRA. This can be illustrated by reference to a number of the key cases. In R (on the application of ProLife Alliance) v BBC Laws LJ argued that the courts have a ‘constitutional duty to protect and enhance the democratic process.’ In R (Jackson and others) v A-G Lord Bingham pointed out that the constitutional balance has been thrown out, and the ‘Commons, dominated by the executive, [has become] the ultimately unconstrained power in the state’. The courts appear to be asserting their constitutional competence against the executive. Other cases show similar evidence of judicial activism.
Director of Public Prosecutions of Jamaica v Mollison shows that the independence of the judiciary is a ‘constitutional fundamental’ and cannot be trespassed upon by other branches of government. In Anufrijeva the House of Lords held that the executive could not make unilateral determinations of people’s rights which bypassed the scrutiny of the courts. This right of ‘access to justice’ could also be considered a ‘fundamental’ constitutional principle. In the Belmarsh case the House of Lords stated that indefinite detention of foreign terrorism suspects was in breach of the ECHR. In so doing, the House of Lords was giving effect to s.6 of the HRA.
Judicial activity under the HRA has also to be seen in the context of the traditional role of the common law judge. Most judges and commentators would agree that judges have a law making power to the extent that they can give rulings that develop the common law. The law making power of the judge is subordinate to Parliament, and the courts have been careful to only change the common law in those areas where they feel that it is appropriate. To some extent, then, judges are legislators, but the Law Lords have been careful not to usurp Parliament’s supreme law making power. The sections of the HRA that allow the judges to ensure that the law is consistent with the rights contained in the ECHR may have enhanced the law making powers of Law Lords, but it would be difficult to see this as threatening the sovereignty of Parliament.
Some have argued otherwise. Most recently, coalition ministers have suggested that the judges have interfered with Parliament’s democratic mandate and extended human rights in such a way as to compromise the will of the people. These arguments raise profound issues about where the balance should lie between human rights and a sovereign
Parliament representing the will of the people. It would be hard to say, though, that the judges have clearly acted in breach of the doctrines of the constitution.
This essay has argued that whilst the HRA may have redefined the powers of judges, it has not completely changed their role. Although there has been no real challenge to
Parliamentary sovereignty, which would indeed go beyond what the framers of the Act intended, the judges are more willing to assert the importance of human rights, and ensure that British law is consistent with the ECHR. Rather than throwing out the balance of the constitution, this suggests that the judges are assuming their correct political role: upholding the rule of law.

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University of London International Programmes

Summary
You should now be familiar with the following;
a. how to make a case note
b. how you will be examined in Part A of the examination
c. essay writing technique.
As far as (a) and (b) are concerned, you need to be aware that practice is essential. You will see, as you read on in the subject guide, that you are asked to make a number of case notes. The more you do, the better you will get. This practice will also encourage you to actually read the important cases.
Reading cases and writing case notes are essential preparation for Part A of the examination. Remember that there is nothing to actually ‘learn’ for this part of the examination. You need to be comfortable with reading cases, and with following legal language. There is no secret to this: it involves practice. Read a case slowly, then read it again. It will take you a number of readings to get the sense of it. But, do not become frustrated. Persevere. Over time you will get better.
You must also practice your essay writing technique. This takes time to acquire.
There are exercises throughout this subject guide that should help you. Essay writing technique is essential to Part B of the examination. The more essays you write, the better you will become. Remember that the key skills to acquire are critical thinking and organising your answer. It follows that you must not learn verbatim ‘model’ answers and reproduce them in the examination. This failure of technique is very easy to spot, and you will be marked accordingly.
If you are tempted to use a model answer, don’t. You are wasting your time. Work on acquiring the techniques that will make you an independent and confident thinker.

Am I ready to move on?


What are the key features of a case note?



Describe a five-stage process for writing an essay.



What is the importance of following a good structure in your essays?



What is the importance of demonstrating critical thinking in your essays?



Have you started practising the process of writing essays?