"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……."

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        “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.

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        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 ...

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