Laws and Flaws

The roots of miscarriages of justice.

  Although this article is about the common law, the author hopes that it may be of more than passing interest to scientists and to all seekers after truth.

  Over the course of some twenty years the author has used his skills in logic, science and literature research to carry out an in-depth study of the history of English law and of the causes of miscarriages of justice.  The main focus has been on English case law, but many cases from other common law jurisdictions have also been studied.

  This has been primarily a scientific study.  By comparing similar cases one finds similar facts.  Just as one may readily classify phenomena into categories as an aid to discovering the laws of nature, so one may classify decisions in legal cases as an aid to the discovery of legal principles.   Indeed, the classification of cases and the abstraction of underlying rules is the very scientific method of analysis and synthesis which gave rise to the common law.

  By using those analytic tools which are common to both science and law, one may expect to discover at least some of the root causes of miscarriages of justice.  In this article some key findings are presented.  A few specific causes are shown to be common to a great number of known miscarriages of justice.  These causes of error are so common that, it is suggested, they constitute evidence of one or more problematic methodologies of law.

Due diligence

  Law is a human system.  It follows that when things go wrong, wherever there is a miscarriage of justice, it can only be due to an action or failure to act of some person.  It cannot be otherwise.  Most commonly the person concerned will be someone whose normal function is to create, interpret or enforce laws.  Less commonly the person will be a witness in court who is either an expert witness or who is assumed by the trier of fact to have expertise in the matter at hand.

  Even where great care is taken by all concerned in a particular case to exercise due diligence, error can result if a prior lack of due diligence has led to a conflict of cases.  Such conflict, if left unremedied, has the potential to undermine the very foundations of the common law legal system.

  The rule of law is founded on logical principles.  Any departure from those principles invites error.  Most importantly, if the courts are not consistent in their application of the law, then one may as well roll dice or cut cards to determine the outcome of legal contests.  When a court rules in one way in one case and in an opposite way in another very similar case, creating a conflict of cases, who then may know the law in order to live by it ?

Knowing the law

  Whatever the form or style of law which operates in any one nation or state, one thing is clear:  it is the duty of every citizen to act in such a way as to avoid the necessity of appearing in court.  That is true regardless of whether the law concerns a civil or a criminal matter.  In order not to appear in court a citizen must know the law.  This does not mean that every citizen must know every law: it means that every citizen is required to know in broad terms how and why the law operates.  The why of it is to maintain the peace.  The how of it is that, in common law jurisdictions, one may seek legal advice from experts, but final and binding legal decisions can only be made in courts of law.

  It is said to be a rule of the common law that we are all presumed to know the law.  This is not an accurate way of putting it.  Justice Talfourd explained the rule thus in 1850:

  The rule is not, that a man is always presumed to know the law, but that no man shall be excused for an unlawful act from his ignorance of the law.

Bentley 1850 4 Cox CC 406, Talfourd J

  The law is such a complex subject that even the best-informed legal practitioners in the entire world do not know by heart every law in their respective countries.  It should be noted in passing that the obtaining of legal advice before the fact is no defence to any complaint of breach of law, although it might be a mitigating factor.  Legal advice can never outweigh a declaration of legal fact made by a judge acting in his proper legal capacity.  How, then, can any ordinary person know the law so that they may not unknowingly break it ?

  In the author's submission, the common law requirement to 'know the law' is a requirement to know little more than the simple fact that, as stated above, final and binding legal decisions can only be made in courts of law.  What this means in the world of ordinary - and even extraordinary - affairs is that no citizen, with the sole exception of a judge operating in his full legal capacity, can lawfully declare what the law says.  It follows that any argument in the streets about the law can only be an exercise in futility.  The keeping of the peace requires that any such dispute must be placed before a trier of law for its resolution.  For that reason it has, it is submitted,  been clear English law until recently, as will be demonstrated, that a person being arrested by a uniformed police officer has no right to decide for himself or herself that the arrest is unlawful.  Such a decision can only be made by a properly constituted trier of fact and law.  Even where the law appears to be quite clear, even when it is written in the plainest possible language, the applicability or inapplicability of any particular law to any particular set of circumstances remains, it is suggested, a matter which only a court of law can resolve.

Common law

  In science, principles which are found to adequately explain phenomena in one part of a system are presumed to operate unmodified in all parts of the system.  That principle is one of the foundations of common law.

  Contrary to a widely held belief, common law does not mean and never did mean the law of the common people acting in their capacity as ordinary members of the public.  Nor does it mean laws held in common by various nations.  What it does mean is non-statutory rules or principles discovered to have been operating in common in decided cases, through careful analysis of many recorded judgements.  Common law, then, is a set of rules or principles derived from an examination of the written records of cases: it is case law. Accordingly, the single most important asset for any practitioner of common law is skill in the discovery and analysis of the relevant literature.

Certainty, uniformity, and predictability

  Peaceful activity under the rule of law is not possible unless the law is known by citizens to a high degree of certainty, is uniformly applied and is highly predictable.

  The common law, being founded on the commonality which is to be discovered in the records of past judgements, is at risk if that commonality is in any way diluted.  For that reason judges are reluctant to depart from principles derived from past cases.  If the law is found to operate differently in different courts, then no litigant can be certain as to which laws apply to him or her.  The rule of legal certainty is fundamental to the rule of law.  If a person is required to obey the law then he or she must be able to ascertain what the law requires of them to a high degree of certainty.  Another function of the rule of certainty is to maintain a high degree of constancy in the application of court rules of procedure, rules of evidence etc.

  The rule of uniformity requires that the law should not be applied differently  on different days or in different locations which are part of a single domain under the laws of a single  legislative body.  Thus, English law must not operate in the courts of Birmingham, say, in any way that differs from the like courts of London.

  The law must be predictable.  This rule states that the outcome of the application of any rule of common law must be predictable.  As with science, so with law: if, on the application of a method, different results are observed on different occasions or in different locations then there is no common rule.

Why ignorance of the law is no excuse

  It is a matter of common knowledge that the law is a complex subject.  It is so complex in fact that it is doubtful if any person could ever know the law of his or her nation in its entirety.  Even though legal practitioners specialize in specific categories of law, they are still likely to be mistaken from time to time as to what the law says on a specific topic.

  It is, or should be, as plain as day that everyone is ignorant of the law to at least some degree: all that varies is the matter of degree.  It must be stated in passing that it is a 'legal fact' that all judges know the law.  This rather nice fiction is maintained every time a judge 'refreshes his memory', that is to say, he or she checks the law books and records.  We know as a fact that some people are ignorant of some laws.  Given the great difficulty in disproving ignorance,  a plea of ignorance of the law, if such a thing were allowed, must, then, succeed in every single case.  But the rule of law would most assuredly perish if any and every person could successfully plead ignorance of the law as a defence to any and every civil claim or criminal charge.

The duty to become informed

  In the case of the greater part of the law, we learn from our peers what the law requires.  In broad, laws criminal and civil require us not to act so as to disturb the socially accepted normal operations of a peaceful society.  Before embarking on a novel venture the citizen is required to consider the legal implications.  If the citizen does not know the relevant law then he or she should seek quality advice.  In order to be certain, where the potential risk warrants it, a person may seek a declaration from a judge which clearly states the persons rights and / or obligations and is legally binding on all parties affected.

Mistakes in law and mistakes in fact

  Since ignorance of the law does not excuse an unlawful act, it follows that a mistaken belief about the law, whether or not it is a belief honestly held, cannot legitimately succeed as a defence in any court of common law jurisdiction.  On the other hand, an honestly held belief about fact, even if founded on a mistake of fact, can afford a defence in appropriate circumstances.  For example, in English criminal law a defendant is entitled to be tried on the facts as he or she genuinely believed them to be at the time in question, not as they are later proven to be.

  It is clear that if a mistake of fact affords a defence and a mistake of law does not, then issues of fact and of law must be kept entirely separate during the course of any trial.  It follows that the admixture or conflation of law and fact is likely to lead to a miscarriage of justice.

  In the case of any dispute of law arising 'in the streets', and which is taken to a court of law for its resolution, one party to the dispute is certain to be found to have made a mistake of law.  Any action which that person has taken which is ordinarily unlawful and which was founded on their mistaken belief about the law, rather than the facts, will not excuse what they did.  That is a very clear principle of the law which is common to very many clearly decided cases.

Due diligence revisited

  A trier of law must exercise due diligence in determining what the law is before using his or her knowledge of the law to determine any person's rights.  The idea that a trier of law knows the law is a very nice 'legal fact', but if error is to be avoided the trier of law has always a duty to 'refresh his or her memory'.

  A trier of facts must exercise due diligence in determining what are facts, and what are not facts, before using his or her skills in determining the rights of any person.  The trier of fact is often a jury.  A jury consisting of persons presumed not to have any expertise in the practice of law or in the evaluation of evidence is completely reliant on the judge for an explanation of what it is that the jury must do and how the jury must do it.  The advice which a judge gives to a jury is crucial to a fair and just outcome of a trial.

  Once evidence has been given during trial, the lay jury can come to know how to assess that evidence in order to discover the facts only if the judge gives proper guidance and instruction.  This does not mean that the judge is permitted to give the jury his or her own assessment of the evidence.  Nor, which is even more harmful to a just outcome, is the judge allowed to give evidence which was not presented during trial, or to embellish or exaggerate evidence which was presented.   If, in the course of his or her summing up, the judge invites the jury to consider evidence which was not presented before that jury during the course of the trial, and which cannot therefore have been contested by either party, then the outcome of the trial will be undeniably flawed.

  A lay jury is - quite reasonably - expected not to know the niceties of law applicable to the facts which they must decide.  It is therefor of the utmost importance that the judge should exercise to the full his or her due diligence in determining the whole of the law applicable to the case at hand and in explaining that law to the jury.

The dust of the arena

  A judge who observes the demeanour of the witnesses while they are being examined by counsel has from his detached position a much more favourable opportunity of forming a just appreciation than a judge who himself conducts the examination. If he takes the latter course he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict.

Yuill v Yuill; CA 1944
  From time to time it may well happen that the evidence being given by a witness is not made clear during questioning.  At such a time there can be no rational complaint made about a judge who asked one or more questions for the purpose of clarification, provided only that such question or questions do not reflect the judge's pre-conceived notions, if any, about what the outcome of the trial should be.  Nor should such questions upset that balance of fairness in the courts which is fundamental to the maintenance of the reputation of common law jurisprudence.

A level playing field

  Justice cannot be done unless the playing field is level.  It is the duty of the judge at common law to ensure that both sides of a legal contest are heard, that they are each afforded the same degree of assistance, courtesy and fair treatment by the court and that nothing acts in such a way as to void the safeguards which the common law and the legislature have provided in order to make a just result more likely than not.

  The term 'bias' tends to raise eyebrows in any legal setting.  All too often a convicted person will claim that the judge was biased.  It would be strange indeed if the judge were not biased, being only human.  One may well ask for how long a judge could continue to hold office if he or she had a permanent bias in favour of criminals.  All humans have biases.  What is required in a legal venue is that the judge and the legal representatives of the parties must leave any personal bias outside the courtroom door.

  Bias is insidious.  With the best will in the world, we cannot reasonably expect that every practitioner of law will enter a courtroom divested of every grain of bias.  However, given the adversarial system, one might reasonably expect to find that the grains of bias balance out in the scales of justice.  But when it becomes strikingly obvious that the scales do not balance, then we may legitimately make inquiry as to whose thumb is resting, hidden, on the scales.  Recall that law is a human system and that where there is error, there also one must inevitably find a human.


  The author's review of many thousands of published cases leads him to the conclusion that the single most common cause of a miscarriage of justice is a failure of the trier of fact to assess all of the relevant facts, a failure of the trier of law to refresh his or her memory so as to consider all of the relevant law, or a combination of the two.

  It follows that miscarriages of justice (as that term is interpreted by judges) can be minimized by insisting on the exercise of due diligence by all legal and law enforcement professionals. 

  Our courts have quashed many more decisions in light of evidence or legal argument which was not presented to the court of first instance than they have in light of purely procedural unfairness.

  Perhaps most important of all: the author has discovered no per incuriam case (where there was a failure to consider applicable and highly relevant law) where the superior court has declined to quash the decision of the lower court.  In my respectful submission, Justice Talfourd would have agreed that the maxim "ignorance of the law is no excuse" applies to our judges as well as to the defendant.
  The rule is not, that a man is always presumed to know the law, but that no man shall be excused for an unlawful act from his ignorance of the law.

Bentley 1850 4 Cox CC 406, Talfourd J