INTRODUCTION TO LAW PRECEDENT LECTURE 4 2000

Beyond these two major criticisms of judge made law - (1) illogicality and obscurity; and (2) unfairness through retro-action, some commentators - in the past I have done so myself - have added a third, that of the timidity and conservatism of English judges, though as we shall see, the English judiciary are less open to this criticism at present than, perhaps, at any time in their history. Let me illustrate this criticism with a recitation [1]:- Calf Path

I hope that this poem assists in seeing that too much reverence may lent to well established precedent and the even more important point that in matters of thought we should not bow to precedent but test propositions on their own merits for ourselves. Even though law is an authoritative structure, studying and applying law requires independent reasoning, and critical, self-sufficient thought.



Bentham, a radical philosopher, was, as we have already seen, no great friend of the common law and he roundly despised "Judge & Co". John Austin, although Bentham's pupil was more a conservative lawyer and was rather more appreciative of judicial law. He said [2], "Notwithstanding my great admiration for Mr Bentham, I cannot but think that, instead of blaming judges for having legislated he should blame them for the timid narrow, and piecemeal manner in which they have legislated, and for legislating under cover of vague and indeterminate phrases" [Province 191]. In other words, even Austin, a renowned black-letter lawyer, advocated a (greater) degree of judicial creativity. And that relaxation is attractive in that a doctrine of strict precedent involves preferring historical pedigree to the merits of the case pertinently and as Schauer asks [3] "Why should the best decision for now be distorted or thwarted by obeisance to a dead past ?" [571]



Here Bentham's Handbook of Political Fallacies is instructive. There Bentham lists a number of supposed arguments against reform which he identifies and exposes as involving fallacious reasoning. One of these is "The Wisdom of our Ancestors, or Chinese Argument". The popular notion is that our wise old ancestors are entitled to veneration and respect because of their wisdom. It is easy to see how this notion might be used to bolster the doctrine of precedent and it is easy, too, if one follows Bentham's reasoning to expose the fallacy. Of course, experience is the source of wisdom. But it is the present time (and generation) rather than earlier times (and generations) which must have the most accumulated experience. Therefore that something was the practice in the past is no reason of itself for continuing to do it unless there is good reason founded in cumulative experience for continuing with the practice. As Samuel Johnson put it, [4] "The law is the last result of human wisdom acting upon human experience for the benefit of the public" [Hestor Lynch Piozzi, Anecdotes of Samuel Johnson (1786) and, as Holmes famously put it, [5] "It is revolting to have no better reason for a rule than that so it was laid down in the time of Henry IV" [Collected Legal Papers p 187]



Precedent is also attacked by radical judges. In England, the best known is Lord Denning and, in my view, there is now a little bit of Denning in most English judges. Just as Thatcher changed politics, so did Denning change judicial practice and perceptions of the judge's role. In Australia, probably the most radical was Justice Lionel Murphy who said, perhaps irresponsibly, in an introductory lecture to law students: [6] "Then there is the doctrine of precedent, one of my favourite doctrines. I have managed to apply it at least once a year since I've been on the bench. The doctrine is that whenever you are faced with a decision, you always follow what the last person who was faced with the same decision did. It is a doctrine eminently suitable for a nation overwhelmingly populated by sheep". Justice Murphy certainly believed that his fellow Australian judges were altogether too quiescent and conservative in their judicial function, and far too little inclined to make or develop law. But not all Australian (or English) judges are like that.



I had the privilege some years ago to attend some lectures given by another creative Australian judge, Justice Michael Kirby, then president of the Court of Appeal of New South Wales and subsequently appointed to the High Court of Australia. I commend his judgment in Garcia v National Australia Bank (High Court of Australia, 6th August, 1998) for inclusion in your Contract file for future reference[7]: "We have it on the authority of Lord Radcliffe that judges, holding to the 'conviction of Galileo', know that "somehow, by some means, there is a movement that takes place" in the exposition of legal principle. The movement may be readily perceived at a distance. Yet, although we may sometimes be unable to say how the law gets from one point to another, no one doubts that movement occurs or that it is "in response to the developments of the society in which [the law] rules ...



It is fundamental to the ascertainment of the binding rule of a judicial decision that it should be derived from (1) the reasons of the judges agreeing in the order disposing of the proceedings; (2) upon a matter in issue in the proceedings; (3) upon which a decision is necessary to arrive at that order. Thus, the opinions of judges in dissent are disregarded for this purpose, however valuable they may otherwise be. Judicial remarks of a general character upon tangential questions or issues not necessary to the decision are likewise discarded, however persuasive the reasoning may appear. In this sense, the rules governing the ascertainment of binding precedent observe principles which are at once majoritarian and precise. Even so great a Justice of this Court as Dixon J cannot speak for the Court unless his reasoning attracts the support, express or implied, of a majority of the participating Justices (disregarding for this purpose any who did not agree in the order of the Court disposing of the proceedings on the point in question). Even then, the remarks will not be part of a binding rule unless they relate to an issue in contention which had to be decided by the Court to reach its order". So far these observations seem very traditional and orthodox but, in fact, Kirby is using highly technical arguments to depart from what has been seen (in his view wrongly) as the law of Australia. He is a great exponent of what Unger called "deviationist doctrine", that is the use of orthodox arguments and binding legal materials to produce unorthodox results. What he is a paoins to assert is that any doctrine of strict or technical precedent is to be understood narrowly: So how far should precedent bind? Kirby responds [8]: "Given the relatively small number of cases about the general law which this Court can accept, it would be unreasonable and undesirable to extend the ambit of dutiful obedience beyond the holdings of the Court to everything said by majority Justices in every decision. That would not only amount to a departure from settled principles governing the doctrine of binding precedent. It would also constitute a departure from the recent encouragement given by this Court to the appellate courts of Australia to play their part in the refinement, development and re-expression of legal principle which cannot, in the nature of things, be wholly left to this Court. Whilst Courts of Appeal and Full Courts throughout Australia may be expected to pay close attention to the opinions on legal principle of individual Justices of this Court, particularly where they are part of a majority on a given issue, those courts are not bound in law by such observations or by obiter dicta or analysis that is not essential to the holding of the Court sustaining its orders. We should not seek to impose a precedential straight-jacket at a time when, because of social and other changes, refinement and development of legal principle is often more important than it was in the past. The present case is a good illustration of that need". In order to explain both continuity and change in the common law, a refined and flexible doctrine of precedent is preferable to a simplistic and rigid doctrine and, in my view, such a doctrine is descriptively more accurate and normatively more appealing.

Kirby thought that there were three important contemporary issues confronting the Australian judiciary : - 1. Creativity; 2. Prospective Overruling; 3. Human Rights. The first and the third are also issues now confronting our own judges and the second is a long term hobby-horse of my own and which has bubbled to the surface in the House of Lords this year. Accordingly I will say a little about each of the items of Justice Kirby's list.



Creativity. Justice Kirby thought that Australia, at least at the level of the High Court, had entered "an age of creativity". I think that much the same could currently be said about the English judiciary. Justice Murphy makes the telling point that the common law should be called "judge made law" or "decisional law" and declares that "As judges make the law (or it has been made by their predecessors), they are entitled to bring it up to date". Justice Murphy refers to the notion that judges do not make law as a "myth" and indicates that some "great judges have repudiated this myth". He identifies Justice Coke, Justice Holmes, and Lord Denning. In 1607 Coke told the King that he could not remove what causes he chose from his judges and determine them himself, founding on reasons which the great Dicey rightly condemned as "pedantic, artificial and unhistorical" but nonetheless as "essential to the establishment of the constitution" [Dicey 1885:18-19]. Holmes was not universally loved. Gilmore described him the "real Holmes" as "savage, harsh, and cruel, a bitter and life long pessimist ..." [The Ages of American Law p 49] Yet Holmes stands like a colossus over all that follows in American legal thinking and even Gilmore brackets Holmes's book Common Law (1881) with Cardozo's The Nature of the Judicial Process (1921) as the "two most celebrated books in the history of American Jurisprudence" [p 75]. The pages of his seminal article, "The Path of Law" (1897) published in the Harvard Law Review are more thumbed and tattered than those of any other law journal article that I have ever read. Holmes was known as "the great dissenter" and, as I have said, the presence in the common law tradition of the dissenting judgment requires some careful attention, even though, as Kirby correctly reminds us, dissents are not binding. However the dissents of yesterday may become the leading judgments of tomorrow and as students of law you ought to be aware that dissenting judgments contain a great deal of useful reasoning and informed criticisms of current law. What the law is, is contested, and though the argument may be settled for the time being by the authoritative ruling of a superior court, the argument may again be joined in the future. The law, especially the common law, is always in flux. Lord Denning, even after his death, needs no introduction from me as an activist and creative judge. You will see as you legal studies proceed that the judiciary includes radical activists at one end of the spectrum and extreme conservatives at the other, with many judges adopting positions somewhere in between.



Lord Reid identifies several different kinds of judges: (1) "the black letter lawyer" or "timid soul" who goes by the book. I illustrate this with the case of the one armed swimmer [9]: "A year or so ago, a swimming meet took place at the University of Toronto. Most of the races proceeded as planned. But, at the end of one race, there was a challenge to the winner of the race. The appropriate group of official convened. The deliberations were lengthy and tense. After much argument and poring over the rules, a decision was announced: the winner had been disqualified and the second swimmer was acclaimed the victor. The referee took the unusual course of offering a brief justification of the committee's decision - "the rules were clear ('The winner is the first swimmer to touch the side of the pool with both hands') and, if this regrettable outcome is to be avoided in future, it will be necessary to change the rules". The winning swimmer had only one arm" [A C Hutchinson, Dwelling on the Threshold, Toronto, (1988), p 23]; (2) the "legal reformer" who by nature is inclined to press on and change things; (3) the "common sense practitioner" who is impatient with technicalities and more concerned with just outcomes. Lord Reid believes that all may be equally good lawyers and he would be sorry to see the day when all are drilled to think exactly alike. [10] "Holmes divided lawyers into kitchen knives, razors, and stings. Brandeis, he said, was a sting" [Catherine Drinker Bowe, Yankee from Olympus (1944)]. I myself classify able law students as juggernauts and lasers.



In any event, once it is acknowledged that judges do make law, questions arise as to the proper limits on judicial law making. Lord Reid emphasises impartiality as central to the judicial role. The judge must not take sides either as between the parties or on the basis of political considerations. Where there is political controversy, Lord Reid suggests law making and law reform is a matter better left to the legislature but judges may and in Lord Reid's view should make law "within the consensus". Two cases may be taken as illustrative: in R v R [1991] 2 All E R 481 a celebrated decision of the House of law changing the law as to rape within marriage on the grounds that there had been very significant changes in the nature of marriage and the status of women. I, myself, believe that this change was within the consensus although there were problems of retrospectivity to which I will turn in a moment. In direct contrast to R v R, I refer to Paton v British Pregnancy Advisory Service Trustees [1979] QB 276, where the plaintiff husband was refused an injunction to restrain the first defendant from causing an abortion to be carried out on his wife, the second defendant, without his consent. No previous claim of this sort had been litigated in the British courts. At the start of his judgment, Sir George Baker P said [11]: "In the discussion of human affairs and especially of abortion, controversy can rage over the moral rights, duties, interests, standards and religious views of the parties. Moral values are in issue. I am, in fact, concerned with none of these matters. I am concerned, and concerned only, with the law of England as it applies to this claim". Whereas I regard these general observations as akin to the officials' reasoning in the case of the one-armed swimmer, I wholly agree with the decision. My sense of this decision is that, whatever the reasoning, granting husbands the right to injunctions against abortions would have been too controversial perhaps even for the legislature and certainly for the judiciary.



Judicial creativity may be assessed in part by looking at how the Practice Statement of 1966 has impacted upon the legal system over the last 30 years. Although it was hailed - I hailed it myself - as an event of great consequence, Professor Zander expresses the opinion that [12] "... in the three decades and more that have passed since 1966 it has become apparent that the new freedom to depart from previous decisions is used extremely sparingly" [Zander, The Law-Making process (4th edn., 1994), p 193]. Certainly, the House will not overturn one of its own past decision's lightly. Nonetheless, Professor Zander's conclusion may be questioned. In a work on the Law Lords (1982), Professor Paterson summarised seven criteria for the use of the new freedom which he thought were articulated in a series of judgments by Lord Reid from 1966 to 1975. The seven criteria, briefly stated are (1) use the power sparingly; (2) preserve legitimate expectations: (3) preserve past decisions construing statutes: (4) avoid sweeping changes where consequences are unforeseeable ... i.e. leave such change to the legislature; (5) avoid overruling where a past decision is merely wrong... some further reason for change is necessary; (6) overrule past decisions which are causing great uncertainty; (7) overrule where a past decision is now considered unjust or out of keeping with contemporary social conditions and current conceptions of public policy. Two further criteria, not included in Paterson's list also attracted judicial support: (8) avoid overruling recent decisions; and (9) avoid overruling past decisions in the criminal law where certainty is especially important. Ultimately it is a question of trade-off between certainty and justice and Lord Reid, although anxious to allow justice into the application of law had a high regard for certainty and that commitment inevitably constrains the use of the power to depart from past decisions. In Shaw [1962] AC 220, the so-called "Ladies Directory Case" Lord Reid, in my view rightly, dissented from the proposition that the House of Lords should agree to the creation of a new criminal offence, namely a conspiracy to corrupt public morals. In Knuller [1973] AC 435, the so-called "Gentlemens' Directory Case" commentators rather expected Lord Reid to invoke the practice Statement and overrule Shaw but he did not because of the especial importance attaching to certainty in the criminal law.



Professor Paterson found that in the years from 1966 to 1980 there were 29 cases in which the House of Lords considered overruling one of its own precedents and that it did so in 8 of these cases. Paterson also found that in 10 other cases at least one Law Lords was willing to use the power and he also suggested that the advent of the Practice Statement encouraged a greater readiness to distinguish past decisions. All in all, then the Practice Statement may be seen as contributing to a loosening strict precedent. The extent of that loosening is controversial. In an article in 1990, Professor Harris identified seven "copper-bottomed" examples of overruling and the following year he added that "Murphy makes it Eight ..." It might seem surprising that there should be any controversy about how often something like the Practice Statement has been invoked by the House of Lords. Is that not a simple matter of record? Well it all depends on what counts as an example. Is it necessary that all five Law Lords agree that it is a case for the application of the Practice Statement or does it suffice if the majority so agree, or if at least one Law Lords expressly bases his decision on the Practice Statement. For example, I have long regarded Conway v Rimmer [1968] AC 910 as the first instance of the application of the Practice Statement, yet it would not satisfy the stringent tests applied by some commentators. Indeed, [13] "...academic opinion is far from uniform: Traynor and Stone stating one view (distinguishing) De Smith, the other (overruling) and Dias both ! This diversity of academic opinion reflects the variety of opinions stated by their Lordships .... Lords Hodson and Morris ... were both overtly for overruling and Lord Upjohn just as clearly for distinguishing. Lord Reid was uncharacteristically ambivalent and Lord Pearce's qualified concurrence therewith hardly made the position clearer". [Tur 1978 JR 48]. So it is always going to be a matter of opinion whether or not a particular decision is an invocation of the Practice Statement. My own view is that there is an increasing readiness to overrule. Thus in Shivpuri [1986] 1 All ER 334 the House of Lords overruled Anderton v Ryan [1985] 2 All E R 355 very recent decision in a criminal law case on a point of statutory interpretation, thus departing from three of the constraints which had long been thought to apply, namely, (i) recent decisions, (ii) criminal law decisions (iii) and decisions on the construction. Again in Howe and Another [1987 1 All E R 771 the House of Lords expressly overruled DPP for N Ireland v Lynch [1975] AC 653 This candour may be preferable to the approach in Moloney [1985] AC 905 where the Law Lords implicitly overruled Hyam [1975] AC 55, then the leading case on the mens rea of murder without acknowledging at all that this was what they were doing. Whatever the frequency of its invocation, the Practice Statement involves different non-precedential styles of argument such as arguments from principle and arguments from comparative data and that widens and enriches legal reasoning. Lord Reid [p 24] emphasises a (Scottish) rationalist's preference for principle over precedent, citing with approval the words of Erskine, one of Scotland's great institutional writers [14] "Judgment ought not to be pronounced by examples or precedents. Decisions therefore though they bind the parties litigating create no obligation on the judges to follow in the same tract [RHST sic track ?] if it shall appear to them contrary to law. It is however certain that they are frequently the occasion of establishing usages which after they have gathered force by a sufficient length of time must from the tacit assent of the state make part of our written law." [Ersk I 147].



Prospective Overruling My own take on the practice statement is that overruling will remain relatively rare unless and until the House of Lords adopts prospective overruling. There is an obvious and serious constraint on judicial law making and law changing, namely retrospectivity. It would be wrong, as Lord Reid fully understood, to disappoint the legitimate expectations if parties by changing the rules upon which they relied after the event. Judge made law is always retrospective and this constrains judicial activism. Lord Reid mentions in passing some "experiments" in America but expresses doubts as to their applicability in England. Prospective overruling is an important judicial technique, developed in America but hitherto questioned by most English judges and even by Justice Kirby who considered it in some detail in the NSW Court of Appeal in Savvas 55 A Crim R 241 Although this technique has not proved popular with English judges who have denounced it as crossing the Rubicon between adjudication and legislation there are some strikingly similar techniques which English judges have happily adopted, especially the early warning - "rumblings from Olympus" [Devlin]- function of what I christened "gross obiter dicta". Eg Hedley Byrne (Tort), Woodar v Wimpey (Contract), R v R (Criminal Law). Whether in its diluted English form or in its robust American incarnation, changing the law for the future whilst applying the existing law to the parties before the court achieves a degree of judicial law reform without upsetting the legitimate expectations of parties who, understandably, relied on the on the law as it was and who would legitimately complain of injustice if the rules change during the game. If one reflects upon the conviction in R v R of a husband for the rape of his wife contrary to the criminal law of England as hitherto understood one might wonder whether there was a breach of Article 7 of ECHR which prohibits retrospective criminal liability. The European Court of Human rights thought there was not because this change in the criminal law as predictable. I do not myself think that is good enough. However, I can justify the conviction on the basis of the last few words in the judgment of the Court of Appeal to the effect that if the accused was not rightly convicted under the "new law" he was properly convicted under a well established and recognised exception to the marital immunity, namely that de jure and later de facto separation negatived the implied unqualified and unqualifiable consent of a wife. Accordingly I do not think the accused in R v R has any grounds to complain that he was convicted under a new rule. He was in any event also subject to conviction under the old rule and the English Courts simply used his case as the occasion to change the general law for the future without - and this is the clever bit - visiting any injustice on the particular accused.



What is important here is that something other than precedent comes into play where precedent is challenged. Principles and values influence outcomes. The problem of course is the potential loss of certainty. Lord Reid observed, [15] "People want two inconsistent things: that the law shall be certain, and that it shall be just and move with the times. It is our business to keep both objectives in view. Rigid adherence to precedent will not do. And paying lip service to precedent while admitting fine distinctions [RHST i.e. distinguishing] gives us the worst of both worlds ... [Follow or Distinguish ... OK but distinguished cases remain part of the corpus of law, like great motionless hulk in the channel, a danger to shipping ... better to dispose of them cleanly and completely] On the other hand too much flexibility leads to intolerable uncertainty" [26]. So [16] "[o]f course we must have a general doctrine of precedent - otherwise we can have no certainty. But we must find a middle way which prevents precedent from being our master". [25]. "[T]o prevent law from becoming a jungle [cf chungle] we must have "some unifying principles". One rich source of such principles is to be found in the secular notion of human rights as embodies ion international conventions and implemented by national and international tribunals.



I turn therefore, albeit briefly to Human Rights and to a comparison of reasoning based on precedent to reasoning based on rights: (1) In Derbyshire CC v Times [1993] 1 AC 534 the question for the House of Lords was whether a local authority is entitled to maintain action in defamation, the defendant newspaper having published an item insinuating maladministration of the local authority's superannuation fund. Held (unanimously): it was of the highest public importance that a democratically elected governmental body should be open to uninhibited public criticism, and since the threat of civil actions for defamation would place an undesirable fetter on the freedom to express such criticism, it would be contrary to the public interest for institutions of central or local government to have any right at common law to maintain an action for damages for defamation. Towards the end of his judgment, Lord Keith of Kinkel observed, [17] "My Lords, I have reached my conclusion upon the common law of England without finding any need to rely upon the European Convention. My noble and learned friend, Lord Goff of Chieveley, in Attorney- General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 283- 284, expressed the opinion that in the field of freedom of speech there was no difference in principle between English law on the subject and article 10 of the Convention. I agree, and can only add that I find it satisfactory to be able to conclude that the common law of England is consistent with the obligations assumed by the Crown under the Treaty in this particular field". This "coincidence" of common law and Article 10 of the ECHR indicates an assimilation by the common law of rights-based reasoning.



The passage in the "Spycatcher" case to which Lord Keith refers is as follows [18]: "Finally, I wish to observe that I can see no inconsistency between English law on this subject and article 10 of the European Convention on Human Rights. This is scarcely surprising, since we may pride ourselves on the fact that freedom of speech has existed in this country perhaps as long as, if not longer than, it has existed in any other country in the world. The only difference is that, whereas article 10 of the Convention, in accordance with its avowed purpose, proceeds to state a fundamental right and then to qualify it, we in this country (where everybody is free to do anything, subject only to the provisions of the law) proceed rather upon an assumption of freedom of speech, and turn to our law to discover the established exceptions to it. In any event I conceive it to be my duty, when I am free to do so, to interpret the law in accordance with the obligations of the Crown under this treaty. The exercise of the right to freedom of expression under article 10 may be subject to restrictions (as are prescribed by law and are necessary in a democratic society) in relation to certain prescribed matters, which include "the interests of national security" and "preventing the disclosure of information received in confidence". It is established in the jurisprudence of the European Court of Human Rights that the word "necessary" in this context implies the existence of a pressing social need, and that interference with freedom of expression should be no [p284] more than is proportionate to the legitimate aim pursued. I have no reason to believe that English law, as applied in the courts, leads to any different conclusion"( Lord Goff in Attorney General v Guardian Newspapers (no 2) [1990] 1 AC 109, 283- 284)



(2) R v S o S for Home Dept ex p McQuillan [1995] 4 All ER 400 is a double edged example. Certain basic rights are said to be fundamental values of the common law but to be trumped by a claim of national security, although on the facts the claim was more akin to one of public interest immunity to protect police sources. The applicant and his family were in danger of attack by members of terrorist organisations while living in Northern Ireland. The Secretary of State suspected the applicant of involvement in terrorist activities. The Secretary of State make an exclusion order preventing applicant from entering Great Britain. The applicant was not informed of the reasons why the order had been made because to do so might 'lead to the discovery of sources of information available, and so possibly compromise police operations and/or put at risk the lives of informants, or their families'. However the threat to the applicant's life in Northern Ireland had been fully taken into account by the Secretary of State in reaching his decision not to revoke the order. Held on the an application for judicial review of the Secretary's decision - (1) The right to life, to freedom of movement, and the right not to be subjected to inhuman treatment by executive action were fundamental values of the common law and it was the duty of the court to scrutinise administrative decision-making which infringed such rights to ensure that all relevant considerations had been taken into account. National security, however, raised special questions that were particularly intractable in the context of a right such as the right to life. Where an executive decision restricting fundamental freedoms and rights was made in the interests of national security, that was established by binding authority to be sufficient to preclude any inquiry by the court into the rationality of the decision and the decision had to be accepted by the court without further scrutiny. It followed that the challenge under domestic law could not succeed. However, the appellant also had rights as a citizen of the European Union and these questions had been referred to the Court of Justice of the European Communities. It would not be appropriate however to suspend the exclusion order pending a decision of that court.



(3) R v Cambridge Health Authority ex parte B [1995] 2 All ER 129 is a case in which a 10 year old child was refused medical treatment on the grounds that the treatment was futile and expensive. Mr Justice Laws held that where a public body enjoyed a discretion whose exercise might infringe such rights as the right to life, it was not to be permitted to perpetrate any such infringement unless it could show substantial objective justification on public interest grounds. Mr Justice Laws considered two dicta of Lord Bridge. First, in R v Home Secretary, Ex p. Bugdaycay (H.L.(E.)) [1987] AC 514, 531, one of many cases concerning asylum seekers [19]: "I approach the question raised by the challenge to the Secretary of State's decision on the basis of the law stated earlier in this opinion, viz. that the resolution of any issue of fact and the exercise of any discretion in relation to an application for asylum as a refugee lie exclusively within the jurisdiction of the Secretary of State subject only to the court's power of review. The limitations on the scope of that power are well known and need not be restated here. Within those limitations the court must, I think, be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual's right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny. Secondly, in R v Secretary of State for the Home Department, Ex parte Brind ((1991) 1 AC 696, 748-749) L Bridge observed [20]: "But I do not accept that ... the courts are powerless to prevent the exercise by the executive of administrative discretions, even when conferred, as in the instant case, in terms which are on their face unlimited, in a way which infringes fundamental human rights. ... we are ... perfectly entitled to start from the premise that any restriction of the right to freedom of expression requires to be justified and that nothing less than an important competing public interest will be sufficient to justify it".



Sir John Laws thought that these dicta [21] " .. could not be read as demonstrating the establishment of some new ground for intervention by way of judicial review but it pointed the way to a developing feature of domestic jurisprudence relating to fundamental rights which should be regarded as having a secure home in the common law. That principle was that certain rights, broadly those occupying a central place in the European Convention for the Protection of Human Rights and Fundamental Freedoms 1953 (Cmnd No 8969) and obviously including the right to life, were not to be perceived merely as moral or political aspirations nor as enjoying a legal status only upon the international plane of Britain's convention obligations. Rather they were to be vindicated as sharing with other principles the substance of English common law. That reasoning did not promote the incorporation of the European Convention into English law but it could be deployed by judges not as a statutory text but as persuasive legal authority to resolve outstanding uncertainties in common law." For the record, the Court of Appeal reversed Sir John Laws on the question of whether the health authority had acted unlawfully but it in no way dissented on the broader issues of the relevance of rights to contemporary common law reasoning and I think these cases and dicta illustrate that principles underlying rights discourse have infiltrated the common law to such an extent as to impact upon reasoning and to provide a side-constraint upon precedential reasoning.



Rercently, in R v Lambert; R v Ali; R v Jordan the Court of Appeal concluded that the presumption of innocence, enshrined in English common law and given effect in article 6 of the Convention of Human Rights and Fundamental Freedoms was not breached by the reverse onus provisions of section 2(2) of the Homicide Act 1957 and sections 5(4) and 28 of the Misuse of Drugs Act 1971. This may be correct but some sophisticated reasoning is necessary to establish the fairness of any reverse onus which rather twists the golden thread which runs through the entire fabric of English criminal law.

===========