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Rodger --- "What are Appeal Courts for?" [2004] OtaLawRw 3; (2004) 10 Otago Law Review 517


What Are Appeal Courts For?

Lord Rodger of Earlsferry* As my title indicates, in this lecture[1]I propose to say a little about the nature of the work of appeal courts. More particularly, I want to explore the extent to which appeal courts are really designed and equipped to shape the law and why, in recent years, they appear to have taken a more active role. The theme presupposes, of course, the existence of an appeal court of some kind. This may not seem a particularly bold presupposition, given that appeal courts are to be found in the legal systems of New Zealand and Britain, to take only the most immediately obvious examples. But it is as well to remember, for example, that while article 6 of the European Convention on Human Rights, agreed in November 1950, guarantees you a fair trial, it does not guarantee you a right to appeal against the outcome of that trial. The right of appeal is to be found in article 2 of the Seventh Protocol to the Convention which was only agreed some

34 years later, in November 1984. So, even in the legal thinking of the modern world, appeals are something of an additional luxury. Historically, of course, they often did not exist at all. During much of its classical period — roughly the first century BC and the first two centuries AD — Roman law worked largely without any system of appeals, as we think of them today.[2]Relying, where necessary, on the advice of the jurists, a middle-ranking magistrate, the praetor, fixed the law governing the case and embodied it in a formula setting out the issue for trial by the judge. Then a lay judge, drawn from a panel, determined the facts and applied the instructions in the formula. In this way the case was decided. Parties could not appeal either on the law or on the facts, although under the Empire rulings on points of law could be obtained from the emperor’s council. But classical Roman law — perhaps the most sophisticated law ever devised, and certainly at least as sophisticated as our own today — existed and developed without a system of appeals. This is not the occasion to discuss exactly how this worked; it is sufficient to notice that appeal courts are not even a prerequisite of a successful legal system. than 100 years since the scandal of the Alfred Beck case prompted Parliament to pass the Criminal Appeal Act 1907 which set up the first criminal appeal court for England[3]— although here in New Zealand a similar body had existed since

1893.[4]While the English Act was quickly copied across the British Empire, interestingly enough, there was no such legislation for Scotland at the time. It took the scandal of the Oscar Slater case and the determined efforts of Sir Arthur Conan Doyle, the author of the Sherlock Holmes stories, to bring about the same reform in 1926.[5]So we should not take the existence of appeal courts for granted. You do not have them simply because you have a legal system.

Whig historians had a tendency to see British history in terms of progress going forward until the state of society in the nineteenth century was reached. It has similarly been said of the leading school of German legal history today that its practitioners tend to see the history of law in Europe as a series of stages by which the torch of legal knowledge was passed from the Glossators in eleventh- century Italy through scholars of various nationalities, until eventually in the nineteenth century it came to be “planted firmly in the Olympic Stadium in Berlin”. This was “the ultimate goal of the legal development of the human race: in a word, Rechtswissenschaft”.[6]Equally, looking back on the development of legal doctrines in our own systems, it is all too easy for any of us to fall into the error of supposing that throughout the centuries the law was being consciously developed along a path which has led to the law we know today. Yet, as Professor Milsom has dinned into us, for most of its history, the jury was the crucial institution of English law.[7]It was juries who set the standards and so determined how the law worked. In such a system there is little scope for judges to develop the law. And, for the most part, they would not have been conscious of trying to do so. So there was nothing planned or inevitable about what happened.

Appeal courts, with a far-ranging jurisdiction, undoubtedly introduce a new factor into any legal system. They tend to be manned by the most able judges and their judgments are intended to bring consistency to the decisions of the courts. It is, however, a cardinal error to imagine that, even with a modern system of appeal courts, generally speaking, legal developments are the result of some grand strategy on the part of the judges that has gradually unfolded and continues to unfold. On the contrary, chance plays a not inconsiderable part in what happens. For instance, however difficult it may be, we must constantly bear in mind that even as late as 1930, no-one knew that Donoghue v Stevenson,[8]the snail in the bottle case, was going to the House of Lords — far less what the result would be. True, the existing law of negligence was criticised as being incoherent,[9]but the same could have been said of many other areas of law. Moreover, the specific question of the interplay of the law of negligence and the law of contract had been explored in long-standing judgments of high authority. By the narrowest of majorities, the House of Lords overruled them and set the law on a new path. But there was nothing inevitable about their decision. Suppose, for example, that Viscount Dunedin, the senior Scottish Lord of Appeal in Ordinary, instead of Lord Atkin, had presided — as he might well have been expected to do in a Scottish appeal. In fact, when the hearing in Donoghue began on Thursday 10 December 1931 he was sitting in the Privy Council which was hearing an appeal from Canada in In re Silver Brothers Ltd.[10]The next day, which was the second and last day of the hearing in Donoghue, the Privy Council completed that case and went on to start the hearing in In re Regulation and Control of Radio Communication in Canada.[11]

Whatever the reason for allocating Viscount Dunedin to these appeals about the scope of legislative powers in Canada — perhaps because of his long experience with such issues — his absence from the House of Lords may well have been critical. More than twenty years before, while he was still Lord President of the Court of Session, he had been the author of the opinion of the Privy Council in the Canadian case, Dominion Natural Gas Co Ltd v Collins & Perkins,[12]which was very much part of the landscape of the existing law. For all we know, he might well have been in favour of retaining that law and dismissing the appeal, leaving Lord Thankerton and Lord Macmillan in the minority. With the rigid doctrine of precedent prevailing until 1966, the subsequent history of the law of tort might have looked very different. Even the New Zealand personal injuries compensation legislation might never have been passed.

Tempting though it is, I do not propose this evening to indulge in a legal version of the kind of counter-factual history that is popular today. All I want to suggest is that chance enters into legal developments to a far greater extent than we usually care to admit. Those of us who study or practise the law might prefer to see it as being the product of a purely rational process. But, in truth, a particular development may take place because one judge is sitting rather than another, because one counsel is better prepared than another, because one side discovers a persuasive authority or the other side overlooks a helpful case. Above all, the merits on one side or the other of the dispute may attract the judges and make them sympathetic to stating the law in such a way that they can find for that side. All these possible factors suggest that the real question is: are appeal courts really bodies that are designed to plot a path for the law?

Appeal courts do not operate, of course, across the board. Even when the right of appeal is unrestricted, as Lord Nicholls of Birkenhead recalled in In re B (A minor) (Adoption: Natural Parent),[13]courts of appeal are not intended to be forums in which unsuccessful litigants may have a second trial of the same issue by different judges under the guise of an appeal. So most appeal courts are happy to leave matters of fact to the first instance court — the judge, jury or tribunal charged with deciding the factual issues. That is only sensible. Parliament has chosen the first instance body to decide the matter and, under our systems in which oral evidence is relied on, that body has the great advantage of having seen and heard the witnesses. In addition, tribunal members will often have particular expertise in the topic. Appeal courts rightly recognise that the chances are that the first instance body will therefore have been in a better position than they could ever be to resolve the factual issues. They, therefore, show great restraint in interfering with its conclusion. The decision of the English Court of Appeal[14]to reverse the decision of a libel jury, finding in favour of the footballer, Bruce Grobbelaar, was very exceptional. I suspect that the Court ofAppeal thought that the jury might have been influenced by the fact that Grobbelaar was something of a sporting personality. At all events, last year the House of Lords agreed with the Court of Appeal’s decision and Mr. Grobbelaar lost his damages.[15]

It is often said that modern appeal courts tend to turn what were formerly issues of fact for a jury into issues of law for the judge. But one can sometimes detect them doing precisely the reverse. For instance, there is a line of cases where the appeal courts have held that it is a matter of fact for the employment tribunal whether or not a contract is one of service or one for services. Now, one might have thought that such a question involved more than a touch of law, but the appeal courts have set their face against that view.[16]

You can see much the same phenomenon in Brutus v Cozens,[17 ]the famous case about an invasion of Court No 2 at Wimbledon by people protesting against apartheid. The protesters were prosecuted for using “insulting behaviour” whereby a breach of the peace was likely to be occasioned. Reversing the Court of Appeal, Lord Reid declared that the meaning of the English word “insulting” in the phrase “insulting behaviour” in the Public Order Act 1936 was a question of fact, rather than a question of law.[18]Again, this conclusion seems somewhat surprising, since one might have supposed that the meaning of a word in a statute was really a question of law to be determined by the court. Pursuing this approach, Lord Reid said[19]that he could not see how the protesters’conduct insulted the spectators — to which an unknown commentator in the margin of one of the copies of the relevant volume of the Appeal Cases in the Otago University Law Library has added, “Then you shouldn’t be a judge”. In fact Lord Reid’s decision on this point was much criticised[20]and recently, in Moyna v Secretary of State for Work and Pensions,[21]Lord Hoffmann took the opportunity to set the record straight. He pointed out that, while the meaning of an ordinary English word is not a matter of law, what is a question of law is the meaning to be ascribed to the intention of the notional legislator in using the word.[22]Referring to the practice of classifying certain questions of law as questions of fact, he said that these were in effect “questions of law as to which lawyers have decided that it would be inexpedient for an appellate tribunal to have to form an independent judgment”.[23]

So it is fair to say that, by these devices, appeal courts have tried to keep away from issues which they feel that they are not best placed to decide. In effect they are thus conceding an enormous area to the first instance courts since the success or failure of many — indeed most — cases depends on the view which is taken on the facts. A weak judge will often try to cut off any appeal from his decision by structuring his opinion so that it is made to rest on his unappealable assessment of the witnesses. My main concern, however, is with those many cases where points of law do arise. Here again different systems adopt different approaches. In Scotland, for example, in most civil cases there is an automatic right of appeal to the Inner House of the Court of Session against any final judgment. And indeed from there to the House of Lords, provided two counsel certify that the case is arguable. In New Zealand, until they come to an end with abolition, many appeals go to the Privy Council as of right. Under such a system the appellate courts have just to decide the cases which are put before them. Any control of the flow or content of appeals comes from counsel’s assessment of the prospects of success and the substantial risk involved in losing and having to pay both sides’ costs. By contrast, in England in all cases you now need leave before you can appeal to the Court of Appeal. You can only go on from there to the House of Lords if the case raises an issue of general importance and either the Court of Appeal or, more usually, the House of Lords grants leave. The requirement for leave to appeal introduces what appears to be an important mechanism that would allow the appeal court to control the flow of cases and, in particular, the issues coming before the court.

Certainly, that is how the certiorari system seems to work in the Supreme Court of the United States.[24]They pursue a ruthless policy of paring down their docket so that they take on no more cases than they can decide during the court year from October to June. In making their selection they choose cases that appear to raise issues that require to be determined by the Supreme Court at that time. In this way they have actually achieved the impossible: unlike almost any other appeal court, they are now deciding fewer cases than they decided a few years ago. And there can be no doubt that their decision to hear an appeal is in itself a significant factor in determining how their constitutional jurisprudence is to develop.

In theory you might suppose that the same applied to other appeal courts. Speaking only from my experience of the House of Lords, however, I am not sure that it works in that way — or, at least, that it works efficiently. At one time all petitions for leave to appeal were dealt with by way of an oral hearing — as remains the position in the Privy Council. In the House of Lords, however, most petitions are now dealt with by a panel of three judges who read the papers. Summaries of the issues are prepared by the four judicial assistants, young barristers or solicitors who spend a year assisting the judges in the House of Lords. These summaries help greatly in identifying the key facts and issues. Even with their help, however, reading and analysing petitions for leave are among the most difficult and time-consuming aspects of our work. Hearings on the petitions take place only where one or more of the three judges think that it would be useful to tease the matters out with counsel. Quite often the hearing, which usually lasts about twenty minutes, takes place, not in front of the original panel of three judges, but before another panel who may not share the doubts of the original three and who are not necessarily told about them. Moreover, when dealing with petitions, the judges are not systematically informed whether the point raised has come up previously in another petition. So, as a newcomer, you may take a long time considering papers only to find that your more experienced colleagues say “Oh, we had this last year in another case. We thought it looked all right and refused leave. I think we should refuse here too.” Indeed, there is a risk — somewhat reduced by recent administrative changes — that two appeal committees may simultaneously be considering the same point in different petitions and may come to different conclusions. Moreover, none of the law lords has any real feel for how long it will take to hear all the appeals already in the pipeline in the House of Lords and the Privy Council. Like everyone else, we get the lists of cases every few months, but there is nothing to indicate, for instance, how many sitting days these appeals are going to take — far less how much time they are going to take to consider and write up. So, under the version that operates with us, at least, leave to appeal does not provide a very efficient means for the members of the court to plan the future work of the House of Lords or Privy Council. Indeed it is not actually designed to achieve that purpose, but only to decide whether a particular appeal is worth hearing. Sometimes, of course, the Court of Appeal will indicate that a certain point of law or a particular aspect of a previous decision of the House of Lords is causing problems and leading to a division of opinion. Then we are likely to take the appeal. For the rest, we must just decide whether the point that is said to be of general importance is really such and whether, overall, the appeal is a runner. But I am not aware of any individual law lord who is actively looking for cases on a particular point because he wants to develop the law. On the other hand, it is quite obvious that nowadays some counsel and, more particularly, some chambers pursue an agenda on particular human rights topics across a whole series of cases, using any advance achieved in one case as the starting point for the argument in the next case. They may therefore try to have an appeal heard on what they regard as an important point in their campaign. Counsel will sometimes try to tempt the judges into dealing with applications for leave to appeal by claiming that an apparently mundane appeal actually raises a

“sexy” point. But we recently had no difficulty, for instance, in refusing leave in a petition in a case which, counsel had cunningly suggested, would give us the opportunity to usher in the day, whose coming Lord Cooke of Thorndon had foretold in R (Daly) v Home Secretary,[25 ]when the Wednesbury case would be regarded as having been an “unfortunately regressive decision in English administrative law” and when the courts could embark on a degree of substantive review of administrative decisions. The feeling was that, even supposing this was an intriguing topic — which was not necessarily as clear to us as to counsel

— we were quite happy to wait till another case came along.

The existing structure of the appeal courts in Britain and, I think, in New Zealand is that they do not, unless exceptionally, sit en banc. They would never get through the necessary amount of work if they did. So panels have to be made up from the judges who are available in any given week. When I was Lord President of the Court of Session in Edinburgh the usual practice was for the Keeper of the Rolls to come to see me at 9.30 on a Thursday morning to discuss the business for the following week. This would show the cases allocated to the three divisions of the court doing appeal work. One would be doing criminal appeals. The list would give the names of the civil appeals and would indicate the court of origin. But, apart from that, there was nothing to show what the appeals were about. I always insisted, however, on having a quick look at the pleadings in the civil appeals so that I could get some idea of what they were about. Usually, I would leave the allocation as it was but sometimes I would move a case from one division to another, or would move a judge from one division or the other, if I thought that the court so composed would be better able to deal with the matter. I might know better than the administrators, for instance, that one division had had a run of difficult cases and should be given a lighter load, or that one judge was particularly experienced in the area of law concerned, or else that another judge had shown little enthusiasm for the topic the last time it had come up. In the House of Lords the two senior law lords now determine who are to sit. For the most part, I suspect, they follow the programme prepared by the administrative staff but they will be careful to ensure, so far as possible, that the Scottish law lords sit on Scottish appeals, the Northern Ireland law lord on appeals from there and the Chancery judges on Chancery cases. Some oddities do none the less occur. We presently have five Chancery judges in the Lords and, recently, they all sat together to hear two appeals. It was the first time ever that an appellate committee of the House of Lords had been composed entirely of Chancery judges and a dinner was held in Lincoln’s Inn to mark the occasion. Curiously enough, however, neither of the appeals was a Chancery matter and one of them was a criminal appeal.[26]

Where courts do not sit en banc, their composition will inevitably vary from case to case. Indeed, I rarely find myself sitting with exactly the same colleagues in two successive appeals. In all courts of that kind, as I have pointed out already, there is a risk that the outcome of cases may depend, or at least may appear to outsiders to depend, on who happens to be sitting. Putting the matter rather differently, an appeal court which does not sit en banc is not really a court that can readily pursue any particular line in developing the law. There is no way of being sure that, on the next occasion that a similar point arises, the judges then sitting will see it in the same way. And, as is often remarked, the absent are always wrong. It is to avoid this problem that the United States Supreme Court always sits en banc. In that way they may hope to ensure that a particular line of authority is pursued and developed consistently. We have no such safeguard. In Lewis v Attorney-General of Jamaica[27]Lord Hoffmann protested against the decision of the majority of the Privy Council not to follow a recent decision of the Board. Drawing attention to the shifting composition of the Board, he noted that:

if the Board feels able to depart from a previous decision simply because its members on a given occasion have ‘a doctrinal disposition to come out differently’, the rule of law itself will be damaged and there will be no stability in the administration of justice in the Caribbean.

To my mind there is great force in that observation. And it is all the more important not to lose sight of it when the Board is dealing with death sentence cases. Ironically, Lord Hoffmann pointed to the decision of the United States Supreme Court in Planned Parenthood of Southeastern Pennsylvania v Casey[28]for guidance as to how a constitutional court should decide when to depart from an earlier decision. This summer, however, the majority of the Supreme Court chose not to apply that approach in Lawrence v Texas[29]and, in the face of a previous decision some 17 years earlier, declared unconstitutional a Texas statute which made same-sex sodomy in private criminal. Their decision not to follow the earlier case was the occasion for a memorable attack by Justice Scalia in characteristically scathing language. Despite this, it remains true that such violent changes of position are less likely to occur in courts which sit en banc. At first sight, therefore, appeal courts of that kind are in a better position to develop the law by pursuing a consistent, planned, course of decisions. In the case of the American Supreme Court, we are all used to reading commentaries on the Warren Court, the Burger Court and the Rehnquist Court and about their supposed liberal or conservative, or pro-state or pro-federal, or pro-life or pro-abortion, tendencies. Doubtless, that makes good sense when the politics and philosophies of the justices are scrutinised during the Senate confirmation hearings before they are appointed. But in Britain at least, for the most part, the judges’ political and social views are difficult to detect and play no part in their appointment. Since I was a law officer in the last Conservative government, my political views are a matter of public record but it was a Labour Lord Chancellor who appointed me to the House of Lords. From general conversation I can confidently guess the political views of at least three of my colleagues. But, for the rest, I have no idea. And, in deciding cases, I have never felt that they played any role at all.

Nor do judges have to subscribe to some declaration as to the orthodoxy of

their legal views before being appointed to appeal courts. Again there is no suggestion in Britain that they are selected because of their particular legal views. Of course, one might choose a judge who knew a lot of European Community Law if it were felt that the court needed strengthening to deal with such cases, but I have never heard it suggested that a judge should be chosen because, say, she favoured weakening the doctrine of consideration in contract or strengthening the doctrine of change of position in restitution. So, like any other reader of the law reports and law journals, I may detect that a certain judge likes invoking academic writings, that another has particular views on how contracts should be interpreted or that a third is cautious about the role of good faith in commercial law. But, in my experience, a judge’s previous record is rarely a good guide to the line he will take when a point comes up again in a later case. As often as not, counsel who deliberately include allusions to a judge’s previous decisions in the hope of enlisting his support find to their horror that, mysteriously and mischievously, he seems to have changed his mind on the point or thinks that he previously spoke too sweepingly. For instance, in Gibson v British Insulated Callenders Construction Co[30]Lord Diplock had his first exposure to the formalities of the Scottish system of pleading and did not like what he saw. While professing to have “neither the knowledge nor the temerity” to gainsay the views of his Scottish colleagues on the point at issue, he launched into a ferocious attack on the whole system — which went down badly among practitioners and judges in the Court of Session. In July 1977, however, Lord Diplock came to Edinburgh to address the Commonwealth Law Conference. He was royally entertained. As a result, he clearly gained fresh insights into the Scottish legal system. So when, a few months later, counsel cited his comments in support of an argument to have a personal injuries case heard in England rather than in Scotland,[31]he summarily dismissed the argument, commenting that their Lordships would not be justified in holding as a generalisation that one system of pleading offers more advantages to plaintiffs in industrial injury actions than does the other.[32]

Given that this is my experience, I confess that I am somewhat surprised when I see suggestions from senior judges that an appeal court is adopting or will adopt a particular legal strategy. For instance, just after Australia abolished appeals to the Privy Council in the Australia Act 1986, the then Chief Justice of the High Court, Sir Anthony Mason gave a lecture entitled “Future Directions in Australian Law”.[33]In it he drew attention to a number of areas in which the High Court had departed from the views of the House of Lords in such matters as the law of negligence. Inter alia he pointed out that the High Court[34]had not followed the decision of the House of Lords in Anns v Merton London Borough Council.[35 ]He said that in the future the High Court would “proceed to develop a coherent common law that is specifically suited to our needs”, “a common law for Australia that is best suited to our conditions and circumstances”.[36]

That may have been his hope, but I just wonder how he could possibly have known that this was how things were to be? After all, the absolutely essential characteristic of a judge is that he or she is entirely independent. Had the Chief Justice consulted his colleagues? Had they all signed up to the project? Even supposing they had, how was this strategy to be carried into effect when individual cases fell to be decided? Were judges going to change their votes in a particular case in order to help create this new entity of a specifically Australian common law? Or was this really little more than a rhetorical way, well suited to the national pride of the moment, of saying nothing more than that the High Court would reach its own decisions — and, wonderful to relate, these would be “best suited” to the conditions and circumstances of Australia? Surely, that is all that he can have meant. For in fact there is nothing specifically Australian about deciding not to follow Anns v Merton London Borough.[37]Indeed Sir Anthony really seems to have conceded this when he said in a later lecture:

Our common law is, despite variations, very similar to the common law as it exists elsewhere. Furthermore, ease of communication and growing familiarity with other countries and their cultures, as well as the internationalisation of commerce and politics, are encouraging a greater unity and harmony of legal rules throughout the world. So the trend is towards similarity rather than distinctiveness.[38]

The point was demonstrated conclusively when, about three years after Sir Anthony had first spoken, in Murphy v Brentwood District Council,[39 ]the House of Lords — presumably deciding what is best suited to the conditions and circumstances of the United Kingdom — overruled Anns and indicated their general agreement with the approach of the High Court. The two systems were back in sync. The courts in New Zealand still pursue a somewhat different policy on the point[40]but, for my part, I would hesitate to say that this reflected any essential difference between the conditions in New Zealand and the conditions in Australia or the United Kingdom.[41]

Appeal court judges should be slow, I believe, to declare that the law which they lay down somehow responds to, or embodies, the special conditions or spirit of their society. At times when nationalism is a significant political force judges often seem tempted to assert this. Scottish judges have been by no means immune to this temptation. At just about the same time as Sir Anthony Mason was speaking, in New Zealand, the President of the Court of Appeal, Sir Robin Cooke, gave a lecture on “The New Zealand National Legal Identity”.[42 ]He adopted very much the same tone, declaring that New Zealand law:

both that made by our parliament and that made by our judges, has now evolved into a truly distinctive body of principles and practices, reflecting a truly distinctive outlook.[43]

Again, the examples of judge-made law that he gave seem to me to display differences of view from the English courts, but nothing that I should readily identify as being the expression of some outlook that is distinctive of New Zealand society. Nonetheless Sir Robin’s conclusion was that, partly for this reason, appeals to the Privy Council should end.[44]

By a curious quirk of fate, however, in 1996 Sir Robin, who was so familiar with society and conditions in New Zealand, was to find himself sitting in the House of Lords as Lord Cooke of Thorndon. There he was to play a distinguished role in formulating the law for the various constituent parts of the United Kingdom. Happily, there is little sign that he felt that his New Zealand roots inhibited him in doing so. In the Privy Council Lord Cooke was able, of course, to bring his experience of New Zealand conditions to bear. When the issue of qualified privilege for newspapers in New Zealand came before the Privy Council in Lange v Atkinson,[45]he was in favour of remitting the case for reconsideration by the Court of Appeal with whose decision, “so far”,[46]he disagreed. Interestingly enough, when the Court of Appeal duly reconsidered the matter, they stuck to their guns.[47 ]In other words, on a matter involving what Lord Cooke described as “a high element of judicial policy”,[48]with his unrivalled experience of New Zealand life, he was in a minority.

This does not suggest to me for one moment that, by spending more of his time in London, Lord Cooke had lost touch with the relevant conditions in New Zealand. Nor do I, for my part, believe that it is easy to identify reasons for supposing that the decision of the Court of Appeal necessarily reflected the balance that the law ought to strike more accurately than the approach which, at first sight at least, Lord Cooke had favoured. It was simply the decision that, having weighed all the issues, they reached. Lord Cooke might well have remained of the opposite view.

In these circumstances, saying that a decision reflects the particular needs and conditions of another jurisdiction is often a convenient judicial code, or euphemism, for saying that you would have reached a different conclusion. And nowadays, when courts are asked to examine decisions of distinguished courts from all over the world, the value of that euphemism is not to be underestimated. For more than thirty years, of course,[49]the Privy Council has paid deference to the assessments of the relevant policy issues made by national courts and hesitates to substitute its own views. That is perfectly understandable, but the doctrine can be pressed too far. After all, good reasons will tend to commend themselves, whatever the local conditions. In Scottish cases in the House of Lords[50]and in appeals to the Privy Council, however, counsel quite often try to bolster weak reasons given by the lower court by investing them with a mystical aura of irreversibility. “Their reasons may look like nonsense to your Lordships,” they say in effect, “and I myself can’t really explain them, but nevertheless you should respect them as the considered views of judges who are familiar with local conditions”. I confess that my immediate reaction to the invocation of local conditions is to look with particular vigilance at that part of the lower court’s reasoning. The decision of the New Zealand Court ofAppeal in Lange v Atkinson involved a reconsideration of earlier decisions and a frank reassessment of the law. That has become commonplace in many common law jurisdictions, not least in Australia and New Zealand. The debate on judicial activism has been much more heated in this hemisphere than it has been so far at home.[51]I suspect that, in part at least, this is because the courts have been drawn into areas such as aboriginal and Maori rights which are peculiarly sensitive in political terms. So far, the courts in Britain have not had to decide such acute issues. Sentencing has been the main area of controversy.

We have travelled a long way from the strict doctrine of precedent as authoritatively laid down by the House of Lords in London Street Tramways Co Ltd v London County Council[52]as late as 1898. On that occasion only four Law Lords sat. The respondents’ counsel were not called upon. Lord Halsbury delivered an extempore judgment that occupies less than three pages in the Law Reports. This confident affirmation of the doctrine in 1898 belongs to a different world. Intellectually, it is part of the same world as Pope Pius IX’s famous decree on papal infallibility, Pastor Aeternus, proclaimed in the First Vatican Council during a thunderstorm on 18 July 1870 — although, doubtless, in the Protestant Britain of those days the judges would have been horrified by the comparison. Pius IX declared that ex cathedra pronouncements of the Pope on faith and morals were immutable by their very nature (ex sese) and not just so long as the Church agreed.[53]The House of Lords went only a little less far: the ratio decidendi of a House of Lords decision too could not be changed by any court, including the House of Lords, but only by Parliament. Although the range of the doctrine of papal infallibility was carefully circumscribed, its effect was really wider since it set the ultramontane tone of the Papacy and of the Roman Catholic Church until the Second Vatican Council, which sat between 1962 and 1965. Since then, although the doctrine of papal infallibility has never been repudiated, many ordinary pronouncements of the Pope and of Church bodies have been subjected to a kind and degree of questioning that would have been unthinkable fifty years ago. Similarly, even when only the decisions of the House of Lords were unchangeable, the London Tramways case helped to set the tone of the legal system as a whole. So not only the House of Lords, but the entire British legal system, changed when, in a mere statement by the Lord Chancellor, the House suddenly announced in July 1966 that its decrees were not, after all, infallible and unchangeable.[54 ]At first the full effect of the change was not apparent, but gradually it became clear that we had entered a new world in which certainty was no longer prized as one of the most important virtues of our legal system. The era of judicial activism, if you like, had dawned.

In October 2002 Dyson Heydon, then a member of the New South Wales Supreme Court and Court of Appeal and now a Justice of the High Court, made an after-dinner speech to the Quadrant Dinner in Sydney.[55]In it he delivered an outspoken attack on judicial activism which he saw as the result of a fundamental change in the character of the members of the judiciary. In his view the judiciary of today has a different character from the judiciary of a generation ago. He says:

There is within its increased ranks a large segment of ambitious, vigorous, energetic and proud judges. Ambition, vigour, energy and pride can each be virtues, but together they can be an explosive compound.[56]

This is not a diagnosis I would be disposed to accept. Ambition, vigour, energy and pride, whether taken singly or together, are all qualities that have long been found in successful members of the legal profession and in judges. For example, if we go back some two hundred years, were the youthful Scott brothers, the future Lord Stowell and Lord Eldon, lacking in these qualities as they fought their way to the top? What about that quintessential Scotsman on the make, Lord Macmillan, who rose with singular determination from his father’s Free Church of Scotland manse to the pinnacle of the Imperial legal system? By comparison with such characters, many judges of today are humble, lethargic and retiring pussycats. Interestingly enough, in his study of the independence of the judiciary[57]Robert Stevens advanced almost precisely the opposite diagnosis. He paints the judiciary of the 1930s, 1940s and 1950s as rather smug and as being out of touch with the changing world. Perhaps there is some truth in that depiction. But one generation should hesitate to lampoon the attitudes of its predecessors. I suspect that the judges of those days were not all that different from the general run of contemporary politicians and professional men. If the judges kept themselves somewhat apart and expected a certain amount of deference, so did politicians. The famous post-War Labour Prime Minister, Mr Atlee, had been educated at a public school and was certainly no populist. Similarly, my father, who was the professor of psychiatry at the University of Glasgow, and a keen Labour party supporter, would have expected — and did receive — great respect, amounting to deference, from his staff. Being engaged with serious issues, he would have thought it absurd to indulge with his colleagues in the kind of general chat about football or rugby that is regarded as de rigueur today. And his colleagues would have been equally astonished. In this they were typical of professional men and women of that generation. In any event, Stevens sees weaknesses in the character of judges of previous generations, whereas Justice Heydon sees weaknesses in the judges of today.

For my part, I would tend to reject any explanation for the changes in the work and in the attitudes of appeal courts that looks to specific changes in the character of those who make up the judiciary. Although, recently, women and people from less privileged social backgrounds have risen to prominence in the legal profession, in Britain at least, for the most part any changes in the attitudes of appeal courts have occurred while they were manned by judges from more traditional backgrounds. Indeed quite often the popular press criticises reforming judges precisely on the ground that they come from an élite background and are out of touch with the (socially more conservative) views of the public. For instance, Sir Andrew Collins, who chaired the Immigration Appeal Tribunal, is an Old Etonian whose background made him the butt of many attacks by the tabloid press after some decision in favour of an asylum seeker of which those newspapers disapproved. It was the left-wing press that came to his rescue. The truth is that the changes in the law — and indeed in the Church — were only part of much wider changes in society. If 1963 was the year when Ridge v Baldwin[58]ushered in the new age of judicial review of administrative decisions, it has perhaps an even greater claim to fame. According to Philip Larkin in his significantly named poem, Annus Mirabilis:

Sexual intercourse began

In nineteen sixty-three

(which was rather late for me) — Between the end of the ‘Chatterley’ ban And the Beatles’ first LP.

The courts were working in this changing society, which seemed to place less importance on applying accepted ideas. It was an age of uncertainty and the courts reflected that spirit. Long before 1963, of course, the legal system had begun to put other values ahead of certainty. For instance, as I have already mentioned, at the time of the London Tramways case, in Britain there were no criminal appeal courts, as we know them today. However grave the charge, the verdict of a jury was really final as far as the legal system was concerned. If any sentence, whether a death sentence or a sentence of imprisonment, was not to be carried out, then the defendant had to persuade the Home Secretary to interfere and grant a reprieve or to authorise the defendant’s early release. This changed as long ago as 1907 with the Criminal Appeal Act. But over the intervening years the process of change has gone much further. The grounds on which fresh evidence can be admitted by a criminal appeal court have been progressively widened.[59]And the appeal court has been given a general power not merely to quash a conviction but to order a new trial.[60]

Nowadays, indeed, the courts have constantly to guard against the risk that, instead of being the end of a fairly short criminal process, the defendant’s trial becomes only an intermediate stage in a long drawn-out process. More significantly still, even when all avenues of appeal have been exhausted, in England and Scotland there are now Criminal Cases Review Commissions,[61]manned by lay people as well as lawyers, which look at the issues and, if so advised, send a case back to the appeal court, perhaps many years later. So, for instance, in 2000, when I was Lord Justice General, we allowed an appeal in a case where the original trial and appeal had taken place as long ago as 1948 in a completely different world in which servants filled coal scuttles and food was rationed. Our decision thus overturned the previous decision of the appeal court more than 50 years before. In that case we had a sense of righting a genuine wrong for a man who was still alive, but had lived his life under a shadow.[62]

Somewhat more controversial are cases where the appeal concerns someone who is dead. The English Court of Appeal has already allowed an appeal in the case of Derek Bentley who was hanged in 1953[63]and is at present dealing with a reference in the case of Ruth Ellis, the last woman to be hanged in Britain, in 1955. The appeal is based on a concept of provocation that was unknown in the law at that time.[64]It is not clear whether it really is appropriate for this generation of judges to be asked to apply its completely different standards to a case which is rooted in the attitudes of the 1950s to sexual relationships outside marriage. But Parliament has so willed.

All these developments were relaxations in favour of defendants. But now in England Parliament has made inroads on the double jeopardy rule which prevents defendants who are lawfully acquitted being tried again. In certain serious cases, where there is new evidence, the Crown will now be able to bring a new prosecution.[65]Again Parliament wants a system which puts little value on the old maxim, interest rei publicae ut sit finis litium, that it is desirable that there should be an end to legal proceedings.

That maxim does not depend on the view that the results produced by the legal system will always be correct. On the contrary, it is really saying that cases should come to an end, even if there is reason to suppose that the result may not be perfect. The system is organised so as to give the parties a fair trial, but not so as to guarantee a perfect trial, far less the correct outcome. The parties have to be content with the best that the system can produce. As the Latin form of the maxim proclaims, this doctrine has very old roots and it is to be found across many legal systems. But, thanks in particular to the laws enacted by Parliament, it has lost ground over the last forty years in Britain.

One important reason for these developments is the startling progress in scientific techniques over that period. For example, in the last twenty years the technique of so-called DNA fingerprinting has moved from being the preserve of just a few laboratories to being a routine form of investigation throughout the developed world. It allows both civil and criminal courts to determine, scientifically and conclusively, issues as to identity that were formerly resolved by a combination of less precise blood tests, general evidence and legal presumptions. Now we are often able to say, beyond all question, that the result which a court reached in the past, for example, as to the paternity of a child, was incorrect. In the face of evidence of that kind, a legal system will lose credibility if it seeks to stand pat on the principle that cases cannot be reopened. Similarly, applying DNA techniques to old exhibits, scientists are now able to produce critical and entirely new evidence which can undermine either a previous conviction or a previous acquittal and prompt calls for the convictions to be quashed or for the defendant, who was acquitted on the evidence formerly available, to be retried in the light of the new scientific evidence. Sometimes, as with the conviction of James Hanratty, who was hanged for murder some 40 years ago, the new DNA evidence may show that the legal system reached the correct decision despite years of criticism.[66]

The overall effect of these scientific developments has been to suggest that, while the decisions of the courts may be the best that they can achieve with existing knowledge, they are not necessarily the final word nor beyond criticism. And — very importantly — it would be irrational to assume that mistakes had occurred only in those cases where advances in science happen to have enabled us to pinpoint them precisely. The public and legal practitioners can see this. So, of course, can the judges. They have therefore become more willing to re- examine not only first instance but appeal court decisions. Having done so, they have quite often reached different decisions from their predecessors. In this way appeal courts themselves have contributed to a general perception that even their own decisions cannot be regarded as infallible. This effect cannot be confined simply to one area of their work. Inevitably, it tends to contribute to a more general view that previous appellate decisions, whether on matters of fact or indeed on matters of law, are open to question.

These, I suggest, are some at least of the factors that have brought about a change in the attitude of appeal courts and have prompted their greater willingness to question previous authority. This inevitably makes judges less confident of the correctness of their own decisions. By contrast, if one looks at portraits of the great judges of the past, say, Lord Mansfield in the eighteenth century, or Lord Watson in the nineteenth, they are men who exude confidence. Having servants, not to mention respectful wives and children, around them, judges of those days were used to having their commands obeyed without question. This carried over into their work in the courts where their judgments were the confident statements of men who did not expect to be contradicted. Even relatively recently, judges who had been officers in the two World Wars, took away from their experience a habit of command. In the Scottish Court of Session, for example, Lord Emslie, the Lord President from 1972 until 1989, was quintessentially a man of that kind whose clear, uncluttered and confident judgments reflect this great strength. Judges today are less sure of this aspect of their role. Being less sure, they may, therefore, not only look for help from the decisions of other judges when reaching their own decision, but they may discuss those other opinions in some detail in their opinions. This makes for long judgments. Justice Heydon blames activist judges for the proliferation of long judgments. But in truth it is hard to make any direct connexion between the ideological position of judges and the length of their judgments. Take, for instance, his own very first case in the High Court, Cattanach v Melchior.[67]Mrs Melchior had undergone a sterilisation operation with a view to having no more children. Dr Cattanach did not carry it out properly and Mrs Melchior gave birth to a son. The Melchiors then sought damages for the cost of raising their son. The High Court held that they were entitled to those damages. Heydon J dissented in a judgment that ran to some 110 paragraphs.[68]I draw attention to its length not in any sense by way of criticism, but just to show how difficult it has become for even the most distinguished judges to state their reasons shortly. What might a judge of yesteryear, who wanted to reject the Melchiors’ claim, have said? Something along these lines, perhaps:

The court was referred to a large number of cases from various jurisdictions. I do not propose to discuss them since, in the end, the issue is one of legal policy that has to be decided according to the law of Australia. Our law has always put a unique value on human life. However humble, however unhappy, however ill the victim, taking a life is murder and attracts the highest penalty. When the British Parliament abolished slavery, it was because they recognised that human beings were not commodities who could be valued and sold in the market place. Similarly, we cannot place a value on the love and care of parents who bring children into this world and who ask for no reward but to see them healthy and happy. The plaintiffs gave life to their third child. He was born naturally and he is healthy. As parents they have given their son the same care and attention as they gave their other children. They gladly say that he has brought them untold happiness. But still they ask for damages on the ground that, but for Dr Cattanach’s negligence, they would not have incurred the costs of raising him. But, equally, but for his negligence, their son would not have been born and would not have enriched their lives. They seek to have the joys of parenthood, but to be indemnified for the financial sacrifices that always accompany that state in our society. That would not be just. Moreover, if the law allowed them to pursue such a claim, in due course their son might well come to feel less valued than his siblings and less valued than other children. This risk is a new form of harm against which, as parens patriae, the court should protect children. By refusing the parents’ claim, the law declares that the responsibilities and endeavours of parents are beyond price and that in its eyes all children are equally valuable. I would allow the appeal.

I do not for one moment suggest that a decision in these terms would have been particularly convincing. I have simply set out, in suitably old-fashioned form, the leading arguments relied on by the minority judges in Cattanach, arguments that are, of course, discussed and rejected by the majority judges. The point, however, is that, at one time, a majority judgment giving short reasons of this kind, declared with confidence and without painstaking consideration of the rival contentions, would have commanded acceptance. It would have been applied automatically and would have quickly become part of the fabric of the common law. Since it would have been binding, there would have been little cause to revisit the reasoning or to measure it against the reasoning in any comparable case elsewhere. And, if some lawyers did not find the reasoning particularly compelling, then in that respect it would have been little different from the reasoning in many other old decisions of high standing. Hadley v Baxendale[69]is not particularly cogently argued, but it has been the foundation of the law on damages for breach of contract for the last 150 years.

The Cour de Cassation is the apex court of the French legal system and its decisions are in practice applied by courts throughout France. Yet those decisions contain virtually no reasoning whatever. They simply recite the relevant facts in the most abstract form, refer to the appropriate legislation and either accept or reject the legal decision reached by the lower court. What the Cour de Cassation does not do is explain in detail the process by which the judges have reached their decision, even in highly controversial cases. In the Perruque case on wrongful birth, for example, the court’s decision, which caused a storm of protest and led to legislation, occupied less than a page of print.[70]Indeed, a textbook prepared for judges of the Cour de Cassation by an experienced judge recommends that, the more important the case as a matter of principle and the more that it has required the judges to think about it, the more one should strive to formulate the decision shortly so as to give it the necessary force and impact.[71]

By contrast, for example, in McFarlane v Tayside Health Board,[72 ]where the House of Lords had to deal with the question of damages for the cost of bringing up a child born after a failed vasectomy, the five Law Lords discussed the different arguments and eventually gave reasons that were all different from one another. The impact of their unanimous decision was thereby somewhat dissipated. Had they been able to find one set of concise reasons in which they all agreed, then, arguably at least, the impact of the decision would have been immeasurably stronger. And the impact would still have been stronger even if — as would have been inevitable — those reasons had been open to criticism. In such a case, whatever the decision and whatever the reasons, critics will always be able to question them if only because, in the nature of things, there is no “right” answer. The court has simply got to choose and, when it does so, it puts forward the best set of reasons it can devise. Those reasons may not be totally compelling but that does not mean that the decision itself is incorrect. The fate of McFarlane vividly illustrates the present tendency to revisit issues. Less than four years later in Rees v Darlington Memorial Hospital NHS Trust[73]an appellate committee of seven law lords sat in case they would have to overrule McFarlane. In the event, they did not do so but, by a bare majority of 4-3, they significantly modified the decision in a way that, the minority said, had been raised in McFarlane but rejected by the majority of the judges then sitting.[74]

I have touched on only a few aspects of the work of modern appeal courts. I fear that, quite deliberately, I have not addressed the kinds of jurisprudential questions to which I know that these issues give rise.[75]I have omitted them, not because they are unimportant, but partly because I lack the expertise to deal with them. More significantly, in my view at least, they are not the key to the way that judges actually go about their work. And that is what I wanted to describe. If British judges are in some sense more “activist” today, for most of them at least it is not because they have a well thought out theoretical position. Rather, I believe, their attitudes reflect wider attitudes in society and, more particularly, deliberate changes introduced into the legal system by Parliament which make for less certainty. In Britain perhaps the greatest of these is the Human Rights Act

1998, which is deliberately designed to unsettle parts of our law by measuring it against a new, external, standard. So far the House of Lords and Privy Council have taken a fairly conservative line, but in the long run the impact of the change will certainly make itself felt.

Whatever happens in the future, however, at heart our system will remain wedded to the common law — much the same common law as you have in New Zealand. I had the privilege of sitting in the University law library where I saw the future lawyers of New Zealand working on texts and cases that would be readily appreciated by their counterparts in England — and in Scotland too, despite the particular characteristics of Scots law. We all have a proud heritage in common which, whatever the times may bring, it is surely our duty to cherish, perhaps to refurbish a little, but then to pass on to future generations.

Endnotes

[* ]ComingLor up tod of comparativelyAppeal in Or mdinary. odern times, we should not forget that it is less

[1]This is the revised text of a lecture delivered in the Faculty of Law of the University of Otago on 17 September 2003 during the week that I spent there. The hospitality shown to me by the staff and students was exceptional. I should particularly like to thank the Dean, Mark Henaghan, and my former Oxford colleague, Professor Peter Skegg, as well as Marie-Louise Neilsen, for making all the arrangements for my visit. It could not have been more enjoyable. I am grateful to my Judicial Assistant, David Blundell, Barrister, for his help in finalising the text. Only after delivering the lecture did I come across R. Bigwood, Legal Method in New Zealand: Essays and Commentaries (Wellington, 2001) where many of the same themes are discussed in detail and with great sophistication. Rather than entirely recast the text, it seemed preferable to leave it as an expression of my own views, reached independently.

[2]The detail is unclear and controversial. See, for instance, H.F. Jolowicz, B. Nicholas, Historical Introduction to the Study of Roman Law (3rd edition, Cambridge, 1972), p.400 and M. Kaser, K. Hackl, Das Römische Zivilprozessrecht (2nd edition, Munich,

1996), pp 502 ff with references.

[3]See R. Pattenden, English Criminal Appeals: 1844 – 1994 (Oxford, 1996), pp 28

– 30.

[4]Criminal Code Act 1893, Part XLIII.

[5]Criminal Appeal (Scotland) Act 1926; Slater v HM Advocate 1928 JC 94.

[6]D. Osler, “The Myth of European Legal History” (1997) 16 Rechtshistorisches

Journal 393, 395.

[7]See, for instance, “Law and Fact in Legal Development” (1967) in S.F.C. Milsom,

Studies in the History of Common Law (1985), pp. 171 ff.

[8][1932] AC 562.

[9]P. H. Winfield, Province of the Law of Tort (Cambridge, 1931), pp 73 ff.

[10]In re Silver Brothers Ltd: Attorney-General for Quebec v. Attorney-General for Canada

[1932] AC 514. I am grateful to John Watherston, the Registrar of the Judicial

Committee of the Privy Council, for his assistance in this matter.

[11] [1932] AC 304. Unfortunately, the Board’s eventual judgment, delivered by Viscount Dunedin, was to contain “one of those distressing lapses for which the Privy Council became notorious in Canada”: P. W. Hogg, Constitutional Law of Canada (4th edition, Scarborough, Ontario, 1997), p. 598 n. 159.

[12][1909] UKLawRpAC 49; [1909] AC 640.

[13][2001] UKHL 70; [2002] 1 WLR 258, 264, para 17.

[14][2001] EWCA 33; [2001] 2 All ER 437.

[15]Grobbelaar v News Group Newspapers Ltd [2002] UKHL 40; [2002] 1 WLR 3024.

[16]O’Kelly v Trusthouse Forte PLC [1984] QB 90.

[17][1972] UKHL 6; [1973] AC 854.

[18][1972] UKHL 6; [1973] AC 854, 861.

[19][1972] UKHL 6; [1973] AC 854, 863.

[20]See, for instance, T. Endicott, “Questions of Law” (1998) 114 LQR 292.

[21][2003] UKHL 44; [2003] 1 WLR 1929.

[22][2003] UKHL 44; [2003] 1 WLR 1929, 1935, para 24.

[23][2003] UKHL 44; [2003] 1 WLR 1929, 1936, para 27.

[24]See, for instance, W.H. Rehnquist, The Supreme Court (revised and updated edition, New York, 2002), pp 232 – 238.

[25][2001] UKHL 26; [2001] 2 AC 532, 549, para 32.

[26]Lloyds TSB General Insurance Holdings Ltd v Lloyds Bank Group Insurance Co Ltd

[2003] UKHL 48; [2003] 4 All ER 43, heard on 7 and 8 April 2003, dealt with an aggregation clause in an insurance policy; Attorney General’s Reference No 2 of 2001, originally heard on 9 and 10 April 2003 and reargued before a special committee of nine Lords of Appeal in July 2003, dealt with the right to a trial within a reasonable time under article 6 of the European Convention.

[27][2000] UKPC 35; [2001] 2 AC 50, 89-90. See also Roodal v The State [2003] UKPC 78.

[28][1992] USSC 112; 505 US 833 (1985).

[29]539 US ___ [2003] USSC 4776; , 123 S. Ct 2472 (2003).

[30] 1973 SC (HL) 15, 27 – 30. His attack included such memorable comments as

(referring to the technical difficulties of pleading) “We are fortunate in England to have abandoned this formerly fruitful source of injustice as long ago as 1875.”

[31]MacShannon v Rockware Glass Ltd [1979] AC 795, 803H – 804B. The defendants’ appeal was argued by the Dean of the Faculty of Advocates, James Mackay QC, the future Lord Chancellor. It was of great importance to the Scottish Bar since, at that time, a great deal of the routine work of junior counsel was in the field of personal injuries. If the appeal had been lost, much of that work might have disappeared to the English courts where, it was thought, damages awards were higher.

[32] [1979] AC 795, 815F – H.

[33]The Wilfred Fullagar Memorial Lecture[1987] MonashULawRw 6; , (1987) 13 Monash University Law Review149.

[34]Council of the Shire of Sutherland v Heyman [1985] HCA 41; (1985) 157 CLR 424.

[35][1977] UKHL 4; [1978] AC 728.

[36]Op. cit., fn. 33, at p. 154.

[37][1977] UKHL 4; [1978] AC 728.

[38]“Changing Law in a Changing Society”, (1993) 67 Australian Law Journal 568,

573. He returned to the theme in “An Australian Common Law?”, his address to the 50th Anniversary Conference of the Australasian Law Teachers’ Association published at http://www.austlii.edu.au/au/special/alta/alta95/mason.html.

[39][1991] UKHL 2; [1991] 1 AC 398.

[40]Invercargill City Council v Hamlin [1996] AC 624.[41]I have dealt with these issues more fully in my unpublished 2002 Grotius Lecture

“Comparative Law and the Role of the Judge”.

[42] (1987) 3 Canterbury Law Review 171.

[43]Ibid., 182.

[44]Aview to which he adhered in conversation with Carson Scott in Upfront, Listener

13 September 2003, pp 12 – 13.

[45] [2000] 1 NZLR 257.

[46]Lange v Atkinson (No 2) [1998] 3 NZLR 424.

[47]Lange v Atkinson [2000] NZCA 95; [2000] 3 NZLR 385.

[48]Reynolds v Times Newspapers Ltd [2001] 2 AC 127, 223A.

[49]Since Australian Consolidated Press v Uren [1969] 1 AC 590.

[50]See, for instance, Smith v Bank of Scotland 1997 SC (HL) 111, 120D where Lord Clyde records the argument of counsel for the bank relying on Invercargill City Council v Hamlin [1996] UKPC 56; [1996] AC 624.

[51]I refer, in particular, to the essays in Part 3 of Bigwood, Legal Method in New Zealand. Justice Kirby of the High Court of Australia chose Judicial Activism as the title of his Hamlyn Lectures delivered in November 2003 and to be published in 2004. He prophesies that the topic will reach British shores before too long.

[52][1898] AC 375.

[53]The critical passage of Chapter IV is to this effect: “Itaque Nos traditioni a fidei Christianae exordio perceptae fideliter inhaerendo, ad Dei Salvatoris nostri gloriam, religionis Catholicae exaltationem et Christianorum populorum salutem, sacro approbante Concilio, docemus et divinitus revelatum dogma esse definimus: Romanum Pontificem, cum ex Cathedra loquitur, id est, cum omnium Christianonorum Pastoris et Doctoris munere fungens pro suprema suaApostolica auctoritate doctrinam de fide vel moribus ab universa Ecclesia tenendam definit, per assistentiam divinam, ipsi in beato Petro promissam, ea infallibilitate pollere, qua divinus Redemptor Ecclesiam suam in definienda doctrina de fide vel moribus instructam esse voluit; ideoque ejusmodi Romani pontificis definitiones ex sese, non autem ex consensu Ecclesiae irreformabiles esse.” For convenience I have used the text as reproduced in Acta et Decreta Concilli Plenarii Australasiae habiti apud Sydney AD 1885, a Sancta Sede recognita (Sydney, 1887), Appendix I, pp 115—116. The form and language of the decree are well worth studying.

[54]Practice Statement (Judicial Precedents) [1966] 1 WLR 1234. For a contemporary comment, see A.L.G[oodhart], (1966) 82 LQR 441.

[55]“Judicial Activism and the Death of the Rule of Law”, (2003) 47 Quadrant 9 (reprinted in this issue of the Otago Law Review from page 493 above).

[56]Page 501 above of this issue of the Otago Law Review.

[57]R. Stevens, Independence of the Judiciary: the View from the Lord Chancellor’s Office

(Oxford, 1993).

[58][1963] UKHL 2; [1964] AC 40.

[59]The position at present is governed by section 23 of the Criminal Appeal Act 1968

as amended by sections 4(1) and 29 of, and schedule 3 to, the Criminal Appeal Act

1995.

[60]Section 7 of the Criminal Appeal Act 1968, repealed in part by sections 43(1) and

170(2) of, and schedule 16 to, the Criminal Justice Act 1988. For the background, see Pattenden, English Criminal Appeals: 1844 – 1994, pp 190 – 204, especially on the power to grant a venire de novo which had been inherited from the Court for Crown Cases Reserved.

[61]Part II of the Criminal Appeal Act 1995 (Criminal Cases Review Commission)

and Criminal Procedure (Scotland) Act 1995 (Scottish Criminal Cases Review Commission).

[62]Fraser v HM Advocate 2000 SCCR 755.

[63]Bentley (Deceased) [2007] UKHL 37; [2001] 1 Cr App R 21.

[64]On 8 December 2003 the Court of Appeal dismissed the appeal against the conviction of murder in the case of Ruth Ellis.

[65]Criminal Justice Act 2003, Part 10, sections 75-97.

[66]R v Hanratty [2018] EWCA Crim 1856; [2002] 2 Cr App R 30.

[67][2003] HCA 38; (2003) 199 ALR 131.

[68][2003] HCA 38; 199 ALR 131, 214 – 245.

[69][1854] EngR 296; (1854) 9 Exch 341.

[70]Arrêt no. 457, 17 novembre 2000, Bull. Ass. PlÈn., no. 9, p 15.

[71]A. Perdriau, La Pratique des Arrêts Civils de la Cour de Cassation: Principes et Méthodes de Rédaction (Paris, 1993), p 427, para 1308.

[72][1999] UKHL 50; [2000] 2 AC 59.

[73][2003] 3 WLR 1091.

[74]See, for instance, [2003] 3 WLR 1091, 1107 – 1108, paras 40 – 47 per Lord Steyn.

[75]See recently T. Campbell, “Judicial Activism – Justice or Treason?”, (2003) 10 Otago

Law Review 307.


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