"The function of the judiciary within the constitution of the United Kingdom is to ensure that justice is done so far as possible ..... to both the defendant and society in criminal trials......."
If miscarriages of justice occur, then not only is the defendant treated very unjustly, but also society (including the victims of crime) has not been accorded the gains in terms of safety, retribution and possible rehabilitation which should flow from an accurate conviction. The question requires us to examine the possible failings, which arise from the personnel by which justice is administered. Taking the argument that case outcomes are construction of fact as mediated by social and professional perspectives, it must be worthwhile to examine some aspects of the performance of the judiciary, who are undoubtedly major players within the criminal justice system.
Attention should first be turned towards the magistrates’ courts where well over 90 per cent of the business of criminal justice is in fact transacted. This focus was not apparent to the Runciman Commission, which naively took for granted the ability of magistrates to handle virtually any case to an acceptable standard of justice. Yet, the system produces a large number of dissatisfied defendants as well as a significant proportion of successful appeals. Consequently, many commentators have asserted that Crown Courts, despite all their imperfections, offer clear advantages to defendants in due process terms over trial by magistrates, which may suffer from case-hardening, lower levels of legal representation and more generally an impetus towards a crime control ethos.
However, it has more often than not been contended that the quality that is produced in cases decided in courts depends largely on the judge’s discretion. However, this has also been criticized that the judges have now become the lawmakers.
It has for many years been our jurisprudential orthodoxy that, within certain limits, superior courts make law and do not simply declare and apply it. This assertion no doubt requires considerable qualification, but as Lord Simon of Glaisdale put it in Stock v Frank Jones (Tipton) Ltd;
"It is idle to debate whether ....... The court is making law ........it depends on what you mean by "make" and "law" in this context"
Lord Simon would not claim this as a particularly fresh insight. A hundred years ago Sir James Stephen lifted the veil in a way that might come as a surprise to those who suppose that judicial candour is a particularly modern prerogative:
"every decision on a debated point adds a little to the law by making that point certain for the future. Indeed, whichever way this case may be decided, it will settle the law upon precise point involved, and it is this which gives to judicial decisions their great importance"
Yet, we still have not fully explored the implications of this fact for the criminal law.
In their attempts to explain the legal system at work, jurists expound the permissible limits of judicial law making. Curiously, such explanatory exercises rarely employ illustrative examples from the criminal law. One possible reason for this is that there are constraints on judicial activism in the criminal law that are at work in private law so that the criminal law is not truly illustrative of the way in which the common law really works. An important difference between the criminal law and the civil lies in the relative significance of the fact that our case law system is mostly retrospective in operation and character. Whereas, in civil law, it can be seen as an inevitable cost of the systems that the resolution of a hard case will work to the detriment of one or other of the contending parties. It is a feature of the rule of law, the principle of legality to which our legal system aspires, that the criminal law must be prospective. But precisely because they are dealing with matters affecting the liberty of the individual, the judges are more likely to be cautious about acknowledging too freely their part in a creative process when they mould the criminal law, which makes analysis of what they do the more difficult.
The fact that judges must inevitably make law raises important constitutional questions; as Lord Simon went on to say in Stock v Frank Jones (Tipton) Ltd., "the court is a mediating influence between the executive and the legislature on the one hand, and the citizen to the other." It might be argued that the exercise of this influence requires the courts to develop some coherent body of principles by which they will be guided. The classical jurisprudential position is that "the criminal courts are expected to prefer the value of personal freedom to others, when there is any doubt about how far the criminal law extends". But there is a developing consensus in academic circles that they are doing quite the opposite, as summarised by Prof. Glanville Williams, that "in criminal cases the courts are anxious to facilitate the conviction of villains, and they interpret the law whenever possible to secure this". That there should be an extreme divergence of view is itself remarkable, and it has a number of disturbing implications; it suggests that judges are free of the constraints of any principle in deciding matters of affecting the liberty of individuals. Even if it is true that neither view applies with any consistency, justice is reduced to a matter of chance, or the temperament of individual judges. It bodes ill for those who would argue that the rights of the individual are safe in the hands of the judiciary in the forms of a Bill of rights if it is all true that the judiciary tends to see itself as a branch of the executive when it carries out its task of establishing the scope of the substantive criminal law.
In trying to make any assessment of the judges as custodians do civil liberties in the criminal process, it is perhaps slightly artificial to single out the substantive criminal law for consideration detached from its procedural and evidentiary context. It may be noted in passing that there is considerable evidence that the judiciary is sensitive to its role as the protector of the individual’s liberties when dealing with that arm of the executive most closely connected with criminal law matters, namely the police. The judges also seem to be particularly sensitive to any attempt by the executive to interfere with the exercise of their sentencing powers. There is also evidence that the courts are concerned to maintain rigorous standards of procedural property in a way that will allow the clearly guilty to go free. Unmet demands that the courts should protect human rights in spite of legislative inertia have frequently meant that the courts have been (unfairly perhaps) criticised for having abandoned their constitutional role as the protectors of rights in the face of pressures to act as agencies of crime control.
But many of the criticisms to which the courts are subjected in their stewardship of the criminal law can be traced to the fact that they appear to have lost sight of what many commentators see the proper constitutional function of the courts as intermediaries between the individual and the coercive powers of the state when it comes to determining the scope of criminal law.
There are however, situations where judges have resorted to law making and hove opened themselves to objection. The following two examples would give a good illustration as to why this is open to objections. In both cases, the defendants were engaged in behaviour that was manifestly reprehensive.
In Hunter  where the Court of Appeal held that there exists an offence of conspiracy to prevent a burial. The three young defendants had hidden under a pile of stones the body of a girl they had unintentionally killed. They were acquitted of manslaughter but convicted of conspiring to prevent a burial. It was not until the case reached the Court of Appeal that the argument was taken that no such offence was known to law. The prosecutor relied on a statement in "Russell on Crime" that it is an indictable misdemeanour to conspire to prevent a burial. The authority there cited was Lynn in which an earlier unreported case (Young) was referred to. Apparently, in that case, three people had been indicted for a conspiracy going by that title. There was nothing in the Lynn’s case to indicate what had happened in Young, but the three defendants including a surgeon and a poorhouse keeper. The latter was under a statutory duty to bury those who died in his care, and the gist of his wrongdoing lay in the failure to perform this statutory duty. Since a surgeon was involved, it is at least possible that the corpse was being sold for anatomical purposes. But the Court of Appeal held that, merely by hiding the body, the three youths had committed the offence as charged. Furthermore, it was held that it need not be shown that the question of burial and its prevention even occurred to the conspirators – it is enough that the result of their action is that a burial should be prevented. This neatly sidesteps the requirement of mens rea in the offence of wilfully obstructing the coroner, as is illustrated by Swindell where an ex-policeman who killed a prostitute in the course of masochistic sexual activities, having been acquitted of both manslaughter and the statutory offence of obstructing the coroner was sentenced to three years’ imprisonment for the substantive crime of preventing burial. The decision shows that, as a result of hunter, there is now an additional charge available whenever evidence of culpable homicide is rather weak and no steps are taken by the person who kills to inform the authorities of what he has done.
In defence of Hunter, it could be asserted that what was done fell squarely within the words used by one recognised legal authority to describe the offence. What the defendants did certainly prevented the immediate burial of their unfortunate victim. Such an argument supports the objection to common law offences that they are inherently vague in their statement. Although we have nothing comparable to the American concept that a statute can be declared unconstitutional for vagueness, the uneasiness about common law offences – generated by their lack of specificity – is potent impetus towards eventual codification.
The second case in the illustration is, Charles v Metropolitan Police Commissioner, was a prosecution under the relatively recently enacted Theft Act 1968. In the course of an evening gambling, the appellant had written a number of cheques, which he backed by the use of a cheque guarantee card. He greatly exceeded his credit limit, and was convicted of obtaining an overdraft by deception contrary to s16(2)(b) of the Act. The casino manager who had accepted the cheques said in evidence that he was indifferent to the customer’s authority to use the card, but Charles was convicted nevertheless. The Court of Appeal was alert to the fact that it was being invited to extend the law to a new form of fraud that it resisted. In the words of Bridge L.J;
"it is right, we think, to shun the temptation, which sometimes presses on the mind of the judiciary, to suppose that because a particular course of conduct, as was this course of conduct, was anti-social and undesirable, it can necessarily be fitted into some convenient legal pigeon hole"
The House of Lords appeared unconstrained by these considerations, and restored the conviction. More recently, in Lambie , it has extended the law of deception to cover credit cards, in spite of a heroic attempt by the Court of Appeal to distinguish the earlier decision on the unconvincing ground that credit card use entails different sorts of contractual arrangements between the various parties.
There are strong policy arguments against making the authorised possessor of a cheque or credit card guilty of a criminal offence merely because he exceeds his credit limit. This is not to suggest that the criminal law should not be used to protect institutions such as banks and credit card companies against the depredations of the dishonest, in particular against the use of cards by people who have stolen them in the first place. But a properly formulated law might for example, require the institution to have taken steps to recover its card before the misuse by an authorised possessor – one of its own customers – could properly be treated as a criminal. A well drafted criminal law should be no wider in scope than strictly necessary to accomplish its aims and should be reasonably certain and clear in its application. The efforts of the House are deficient on both counts, and demonstrate at least one of the most hazardous features of judicial law making, namely the inability of the courts to receive evidence on the magnitude of the problem with which they are dealing, and the unsuitability of the forensic process as a forum for assessing the relative merits of the competition in arguments for and against making any particular type of conduct a criminal offence.
The creative powers of the courts might be invoked in three different ways. A prosecutor might call upon the court to create a new offence, or to extend the scope of an existing one. A second possibility is that the courts might be invited to abrogate an offence on the ground that, for example, it is or diminish the scope of a defence, or create a brand new one. All of these possibilities involve creative choices, and it is arguable that different principles apply according to whichever power is being invoked.
The judges have tended to discuss their creative powers when considering common law as opposed to statutory offences. Historically, they asserted extensive powers to add new crimes to the criminal calendar, but it is clear that by the time Sir James Stephen wrote towards the end of last century, the power had diminished to the point of extinction. In the celebrated case of Price the legality of cremation was in issue, Stephen J. refused to accept that it was any longer open to him to declare the existence of a misdemeanour where there had been none before. That task, he declared, was a matter for Parliament and not for the courts. But Stephen’s voice was only one amongst many; the threat to abolish the vestigial power to create new offences rallied the judges against the Criminal Code Commissioners’ attempts to reform the law in a way that would have removed the power altogether. There were sporadic assertions and denials that the power existed, until matters were brought to a head in Shaw, where the House of lords asserted a right to create new offences as required to enable it to carry out its role. As a result of the hostile reception accorded to that claim, the House then hinted in Knuller that it would not seek to exercise such powers as it might continue to have, and then conceded in Withers that it had given them up altogether. When invited recently to resurrect the spirit of Shaw, their Lordships declined the invitation with a vigour born out of indignation that they were open to such improper suggestions:
".....it was seriously argued for the respondent that the Lordships should extend the law of contempt.......by a bold act of judicial legislation. This their Lordships resolutely declined to do......"
But even as they were avowedly eschewing creative powers in Knuller, their Lordships were giving birth to the new crime of conspiracy to outrage public decency. In the words of one critic, Knuller "exemplifies judicial law-making at its worst".
The plain assertion that the courts are no longer free to create new heads of liability in the criminal law is far from being an end of the matter. As the Law Commission put it:
"the asserted effect of denial (of the power to create new offences relating to morals, decency or ‘public mischief’) is minimised by the facility with which a novel set of facts may be subsumed under an existing head of liability in conspiracy"
Even now, judges continue explicitly to assert a power to develop the law in criminal law matters, and contend that the categories of criminality are still not closed. In the words of Lord Dilhorne in Withers
"To say that there is now no power in the judges to declare new offences does not, of course, mean that well-established principles are not to be applied to new facts"
Lord Dilhorne may have been making a different claim – that it is part of the judge’s function to make sure that the morally culpable are not made the lucky beneficiaries of inadequacies in the law; the judge should if necessary mould the law in accordance with principles of common sense and fairness.
It is suggested that the purposes for which we use the criminal law are too diverse to be susceptible to organisation in terms of a policy that is of any use to the judges. Although it is true that the prevention of harm to such interests as life, personal physical integrity and property, the safety of the state and the protection of the process of justice are the classic subject matter of the criminal law, and also true that anybody who fails to observe the law’s injunctions to "be honest and refrain from violence," runs the risk that his behaviour will fall foul of the criminal law, there is no unifying principle – such as the presence of fault – that provides a positive justification for making a conduct criminal. But we have gone several centuries past the equation of crime with sin and any positive explanation that might have been extracted from that. The decision to use the criminal law is therefore a random one and that is why it is important that the process of criminalisation should be as democratic as possible.
1. Smith And Keenan’s English Law
By Denis Keenan
Publisher: Pitman (London) 9th Edition
2. Walker And Walker’s English Legal System
By Donald Walker & Richard Ward
Publisher: Butterworths (7th Edition)
 Home Affairs committee, "Judicial Appointments Procedure" (1995 – 96 HC 52) Para 3
 Derbyshire. P, "an Essay on the Importance and Neglect of the Magistratracy" (1997) Criminal Law Review, p627
 Runciman Report Ch6 Para18
 Coney (1882) 8 Q.B.D 534, 550 - 551
 For example, M.Zander, "The Law Making Process" (1980) Capt 6
 See: Glanville Williams; "Criminal Law: The General Part" (2nd Ed, 1961) p 600
 P.Stein and J.Shand, "Legal Values in Western Society" (1974) p.145
 "Textbook of Criminal Law" (1978) p5
 See; L.Scarman’s extra-judicial utterance in "English Law – The New Dimension" (1974)
 See: Munro: "The Separation of Powers: Not Such A Myth" (1981) P.L 19, 23
 See: eg. Brophy (1982) A.C 476
 See: D.T.G Williams, "Civil Liberties and the Protection Statute" (1981) 32 C.L.P 25 for a defence of the courts.
 (1974) Q.B 95
 (12th Ed, 1964) p 1420
 (1788) 2 T.R 733; 100 E.R 394
 Contrary to the Coroner’s Act 1987; Purcy (1934)24 Cr. App. R. 70
 (1981) The Times, October 9.
 (1977) A.C 177
 (1976) 1 WLR 248, 256
 (1982) A.C 442
 Glanville Williams, "Offences And Defences" (1982) 2 Legal Studies 233
 See generally, R.M Jackson "Common Law Misdemeanours" (1936-38) 6 C.L.J 193
 (1884) 12 Q.B.D 247
 Welland (1884) 14 Q.B.D 63 per Huddleston
 H.L.A Hart, "Law Liberty and Morality" pp 1 - 24
 Lord Goddard C.J in Newland (1954) 1 Q.B. 167
 (1973) A.C 435
 (1975) A.C 842
 Badry v D.P.P of Mauritius (1983) 2 W.L.R 161
 M.D.A Freeman, "Standards of Adjudication, judicial Law making and Prospective Overruling" (1973) 26 C.L.P 166, 195
 Law Commission Working Paper No.50, "Inchoate Offences, Conspiracy, Attempt and Incitement" p8
 (1957)A.C 842, 859
 Glanville Williams "Textbook of Criminal Law" (1978) p9