Too Much Law, Too Many Cases

Nobody was surprised when Lord Judge complained at the Lord Mayor’s dinner last Tuesday that the Government was passing too many laws. But his complaint about being suffocated by too many cases received far less attention.That came on the same day, but in the Court of Appeal. It is therefore binding and needs to be better known. I am grateful to one of my most loyal readers for passing it on.

Lord Judge was talking about decided cases, or “authorities” as the lawyers call them. “What is abundantly clear,” he said, “is that without a fresh approach to the way in which authorities are used in the course of forensic argument the administration of criminal justice will be suffocated”.

The problem was that every single judgment of the Court of Appeal was available to the advocate.

Understandably, the advocate doing his duty by his client seeks to identify each and every case which even remotely appears to bear on the principle under consideration or which has some passing factual similarity to the one with which he is immediately concerned…

And so, like Topsy, the process has grown, and lengthened, and continues to grow and lengthen without the slightest discernable improvement in the doing of justice in the individual case and to the delay and disadvantage of the administration of justice generally.

Lord Judge warned counsel not to cite too many cases. Adapting the well known aphorism of Viscount Falkland in 1641, which also surfaced in his Guildhall speech, Lord Judge said

if it is not necessary to refer to a previous decision of the court, it is necessary not to refer to it. Similarly, if it is not necessary to include a previous decision in the bundle of authorities, it is necessary to exclude it. That approach will be rigidly enforced.

On the other hand, there are some cases that are not cited enough. In February, Lord Judge complained that a case called Carter and decided in 2006 was not as well known as it should be.

The Court of Appeal had decided that a man who used false identity papers to obtain employment was committing an offence for as long as he was working, rendering his wages liable to confiscation. But the judgment had hardly been noticed in the text books and law reports.

As a bonus for those who have read this far, I can’t resist quoting the whimsical remarks with which Lord Judge began his speech of thanks last week to the Lord Mayor of London (who is not the same as Mayor of London, you understand). The Lord Chief Justice kindly included anachronistic references to your humble scribe and the Legal Editor of the Times (in that order).

My Lord Mayor, you assumed your ancient office last autumn in the eye of a financial hurricane. Life must have seemed much easier for your famous predecessor, Dick Whittington, who on 23 November 1415 rode out to Blackheath, accompanied by 24 Aldermen, all fully and gloriously caparisoned, to greet Henry V after his famous victory at Agincourt and to lead him into the City.

The celebrations were wonderful, the chroniclers were made merry. They were the Venerable Joshua in the Troubadour Gazette and the Blessed Frances in the Merry England Times. They were united in saying that the day was extremely convivial. What a lovely word. So evocative. I’ll bet it was convivial.

I don’t think that on that day there was too much concern about ASBOS, Health and Safety issues, and it was a day when we can be sure that not a single human right was infringed.

 

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