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JUDICIAL PRECEDENT

BY THE END OF THIS UNIT YOU WILL BE ABLE TO EXPLAIN AND ILLUSTRATE (AO1):
The hierarchy of the courts in England and Wales The meaning of the terms: stare decisis obiter dicta ratio decidendi The different types of precedent, and illustrate each with a case [Binding, Original, Persuasive] The different methods used by the courts to follow or avoid precedent [FORD] When the Court of Appeal and the House of Lords may depart from a previous decision

YOU WILL ALSO BE ABLE TO EVALUATE (AO2):

The powers of the CA and the HL to avoid precedent The advantages and disadvantages of precedent as a system of law making.

HOMEWORK:
Read the article from Gary Slapper and answer the questions on precedent and the HL for next lesson. The link is below: (http://business.timesonline.co.uk/tol/business/law/columnists/gary_slapper/article3314787.ece)

END OF UNIT TEST:

As you will be aware, at the end of the unit you will have a week to revise for a DRAG test, and then plan and answer the sample question at the end of the pack. You are reminded that the grades and progress you make are reliant on your effort in class in these assessments. You will also complete a past question on precedent, which will be planned in class time before completing it in timed circumstances
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HIERARCHY OF THE ENGLISH COURTS.

Complete an A4 hierarchy of the English Courts below from memory. Make sure that you label the appellate and the courts of first instance.

Task:

Which two European courts are also part of our system? 1. 2.

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JUDICIAL PRECEDENT

Remember, there are two types of law: Common law = Statutory law = e.g. e.g. ; and

Precedent applies to both of these, whether it is civil or criminal law. That means is covers both the interpretation of the law set out by Parliament and the law created by the courts themselves.

It is so important because it provides consistency and certainty.

What if there was no precedent?

It would mean that Luton Crown Court could decide something such as Murder is legal as long as it is done with a spoon, and within the boundaries of Queensbury Upper School. Can they do this? Why/ why not?

What about Bedford Crown Court. What if they decide that instead of a spoon, it is only hangings which are legal. What problems might it lead to?

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WHAT IS PRECEDENT?

Basic Key Rule:

A judge must follow any decision made by a higher court in a case with similar material facts. This means that they are . Some courts (the higher ones) also follow their own previous decisions. Thus they are said to bind themselves. In order to decide if a judgment is binding, and must be followed, we need to look at the material facts of the case. This means the facts which are key to the judgment. Definition: Material facts are the ones which are so important that if they are changed, they will affect the decision or outcome.

The main principle of precedent is known as stare decisis or let the decision stand. This simply means that the court should not change the law, or challenge another courts decision unless very, very, very, very necessary!

HOW DOES IT WORK?

When a Judge hands down a decision, he also has to give the reasons for his decision. This means we get the point of law (the bit we have to follow) as well as the facts and other things. If (in the appeallate courts) a judge disagrees with the majority decision, then they will also need to write a report which explains why they disagree. Although this minority judgment doesnt have any binding power, it might be very persuasive in a later case. Each judgment should have four things: 1. 2. 3. 4. In Latin this is known as In Latin this is known as

Task: At the back of the handout is a copy of the case of R v Bentham (remember the fingers?) Have a read can you spot the ratio?

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Ratio Decidendi
This is the bit which creates the new law and must be followed by the lower courts. It is the judges understanding of the law and its application in the case. Now, bear in mind that there may be many ratios in one case! Even if it is a unanimous decision. Case Re A (Conjoined Twins) 2000 R v Brown 1996 Ratio more Ratio

Obiter Dictum
These comments arent binding, but they can be persuasive and they might come around in a number of ways: The judge could comment on what the decision would have been if the facts were different, Make some general comments on the topic of law under discussion; or Comment on what his decision would have been if he wasnt bound by precedent. Case R v Howe
Why was it obiter?

Obiter

applied in

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STUDENT CONSOLIDATION TASK

So, how do we decide if the facts of two cases are sufficiently similar? We need to look at the details. Read the two situations below:

CASE ONE
A man driving a ford escort in a residential area, speeds and runs over an old lady who was using a zebra crossing. He is found guilty of reckless driving What are the material facts of the case?

CASE TWO
A woman driving a 10 year old BMW on the A666 runs over an old man who is crossing the road.

What are the material facts of the case?

Is she guilty too?

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SO, THATS THE THEORY... HOW DO THE COURTS DO IN PRACTICE?

Listen to the facts of R v Brown and R v Wilson. Is there really sufficient difference to distinguish them? This is one way that the courts can avoid the idea of precedent.

Then, in 1999 comes the case of R v Emmett. Which case should it follow? Why do you think the appeal court chose Brown?

SO HOW THE HECK DO WE KEEP UP WITH ALL THESE STATEMENTS OF THE LAW?
Well, we have a very well developed law reporting system. This means that you can look up any case, and find it and find out the law! Yes, it means that there are a lot of books, but the law is adapting, and embracing the new technology!

So, how do I find one case among hundreds? The secret is in the citation that is the numbers and
letters at the end of a case.

R v Shivpuri - [1986] 2 All ER 334

If you are looking up a case in a text book, you will always find them in the of the book.

Look up the following cases in the front of OCR Law for AS. Complete the reference and then identify what page they appear on? R v R 1991 Shivpuri 1987 Airedale NHS Trust v Bland 1993 R v Woollin 1997
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TYPES OF PRECEDENT AND WAYS OF APPLYING PRECEDENT.

Remember: the general rule is that precedent must be followed (stare decisis).

This means that every court is bound to follow decisions made by the court above them in the hierarchy, even if they disagree with it. In addition, the appellate courts are generally also bound by their own previous decisions. However, as with everything else in the law, there are exceptions to this rule: 1. 2. 3. 4. Supreme Court is not bound by the lower courts Practice Statement 1966 (applies only to Supreme Court) Court of Appeal may use the Young or Taylor exceptions. The divisional courts and High Court may also use the Young exceptions.

-----------------------------------------------------------------------------------------------------------------------Just remember to BOP!!!

TYPES OF PRECEDENT

Binding Precedent
This is where the judge in the later case must apply the earlier ratio, even if they dont agree with it. This only happens if the facts are sufficiently similar R v G&R 1999 in the Court of Appeal Facts: Ratio: CA dismissed the appeal, as they were bound by an earlier case of R v Caldwell, which said that there was an Objective test for recklessness.

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Persuasive Precedent
This means that the judge does not have (or is not ) to follow it, but it might be choose to - it persuades them to follow it. It comes from a number of different places. Remember, that this normally comes from the of other cases. Lower Courts in the hierarchy R v R 1991

Decisions of the Judicial Committee of the Privy Council This is because many of the members of the PC are often also members of the HL. Therefore, if it is an issue identical to an area of English Law and the judges are there, it may be persuasive. Wagonmound No.1 (1961) - established the test for remoteness of damage.

A more modern example from the law on manslaughter R v James, Karimi 2006 Applied the law from the case of Attorney-General for Jersey v Holley, over the previous HL decision in R v Smith (Morgan). All of these cases focus on what characteristics can be taken into account in the special defence of manslaughter by provocation.

R v Smith (Morgan)
in the HL

AG for Jersey v Holley

in the PC

R v James, Karimi
in the CA

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TASK Read the following extract from the judgement and explain: On what grounds did the CA justify ignoring precedent?

43. What are the exceptional features in this case which justify our preferring the decision in Holley to that in Morgan Smith? We identify the following i) All nine of the Lords of Appeal in Ordinary sitting in Holley agreed in the course of their judgments that the result reached by the majority clarified definitively English law on the issue in question. ii) The majority in Holley constituted half the Appellate Committee of the House of Lords. We do not know whether there would have been agreement that the result was definitive had the members of the Board divided five/four. iii) In the circumstances, the result of any appeal on the issue to the House of Lords is a foregone conclusion. 44. We doubt whether this court will often, if ever again, be presented with the circumstances that we have described above. It is those circumstances which we consider justify the course that we have decided to take, and our decision should not be taken as a licence to decline to follow a decision of the House of Lords in any other circumstances. 45. For the reasons that we have given, we approach the individual appeals on the premise that the relevant principle of law is to be found in the majority decision of the Privy Council in Holley and not the majority decision of the House of Lords in Morgan Smith.

Statements made obiter dicta [normally from higher courts]. R v Gotts 1992 applied the obiter from R v Howe 1987, which said that duress could not be a defence to attempted murder.

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Decisions of the courts in other countries Some courts around the globe have similar common law set ups to out own and can be very influential. This is especially true of Canada and Australia.

Lister v Hesley Hall [2001]

Overruling T v North Yorkshire 1998 on the issue of whether damages for sexual abuse could be recovered from the employer, Steyn LJ referred to two recent judgements of the Supreme Court of Canada as particularly helpful in establishing the right test.

R v Parks [1992]
For years this has been the approved case on somnambulism as a defence in England and Wales

Re: S [1992]
In deciding this case (whether the court could issue an order granting a caesarean to save mother and babys lives where the mother had refused), the court looked to the USA and their approach.

R v Rabey [1980]
In deciding when a person has a full defence of automatism to a criminal action (they dont know what theyre doing), its not enough that they were affected by the ordinary stresses and disappointments of life. This idea has been accepted by the English Courts.

Dissenting judgements [dissent means:

Remember that if a judge dissents in the appellate courts, they must write up their judgment explaining the reasons for their decisions. This is particularly important with the CA, as if a case goes on appeal to HL, then they may prefer the dissenting opinion. Hedley Byrne v Heller 1994 in HL, they opted to follow Denning LJs dissenting judgment in Chandler v Crane Christmas 1951. Liability for a misstatement causing purely financial loss.

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Original Precedent
This is where there has been no decision on that particular point of law before! Because there is no precedent, the courts have to work from cases which are closest in rules, and work by analogy. This might cause a problem, as the judges are arguably making new law here. This contradicts the principle of of . However, some people argue that there is no conflict, as all the courts are doing is naming laws that have always existed! What do you think? Read the following cases are they declaring or creating law?

Hunter v Canary Wharf 1995 Facts:

Ratio:

Airedale NHS v Bland 1993 Facts:

Ratio:

Shaw v DPP 1921 followed in Kneller v DPP 1973 Facts:

Ratio:

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McLoughlin v OBrien 1982 Facts:

Ratio:

Gillick v West Norfolk NHS 1985 Facts:

Ratio:

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APPLYING PRECEDENT

Simple - we apply FORD.. Follow [this is what happens most of the time, and is not covered here ] Overrule Reverse Distinguish

Overrule
This is where the court in a later case overrule an earlier decision in a different case. This is generally done by a higher court overruling a lower courts decision, but the House of Lords and the Court of Appeal may overrule themselves [As can the ECJ] in certain circumstances [see later] One of the problems with this is that precedent is retrospective, [ ] unlike legislation. This means that you may be liable or guilty even though your action was not forbidden at the time you did it! [Got it?!] Again, the argument against this is that the court is simply stating what the law is the whole time. One small problem the later decision cant be applied in the earlier case. Is this fair? 1. Pepper v Hart overruled the earlier case of Davis v Johnson, and allowed Hansard to be used in statutory interpretation by the court.

2. R v R 1992 overruled common law rule dating back 250 years that a man could not rape his wife.

Reversing
This is where a higher court reverses the decision of a lower court in the same case. This really means that the appellate court overturns the decision and replaces it.

R v Woollin .
D threw his 3 month old baby at the wall and he died as a result of the injuries. The Court of Appeal upheld his conviction on the grounds that the outcome was virtually certain. However, the House of Lords reversed their decision, and replaced the conviction for murder with one for manslaughter.

Fitzpatrick v Sterling House Association 1999.

Ds partner died and his name had been on the lease for their house. D was not allowed to contiue the tenancy because they were a gay couple, and not married. However, the House of Lords reversed the Court of Appeals decision and said that he could inherit the lease.
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R v Kingston 1993.
D had paedophilic tendencies and X wanted to blackmail him. X invited D round for tea, drugged his drink and put him into a bedroom with V. D abused V and was charged. The original trial held that he was guilty, even though his intoxication was involuntary. The Court of Appeal reversed this, and then the House of Lords reinstated the original verdict.

Distinguishing
This is where the judge uses the facts of a case to show that they are different enough to allow the judge to avoid having to apply a ratio. Distinguishing can be used by any court (including the Magistrates Court). It is a neat way to avoid unnecessary appeals, but it can lead to judges distinguishing on what are really very daft grounds!

R v Brown 1993 was distinguished from R v Wilson 1996 on the grounds of branding being equivilant to
tattooing and therefore exempt from the trifling and transient rule in Brown, as well as the fact that in Wilson, they were in a loving and committed relationship.

Balfour v Balfour 1999 was distinguished from Merritt v Merritt 1971 on the grounds that in the earlier
case there was an intention to create legal relations. Both cases revolved around agreements by husbands to pay their wives maintainence after seperation (breach of contract). In Merritt, the parties were still living in the same house and it was an informal, spoken agreement. In Balfour, he had moved out of the marital home, and some legal steps had been taken. That was enough! Also, remember that some judges just flat out refuse to do this!

QUESTIONS:
2. Explain which type of avoidance is most suited to the two of the scenarios below. Illustrate your answer where appropriate. a. On appeal, the Court of Appeal disagrees with a ruling of the High Court and wishes to replace it with a different decision.

b. A judge in the Crown Court does not wish to follow a past precedent of a higher court as she feels that the facts are slightly different.

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HOMEWORK QUESTIONS:

Look at the article: (http://business.timesonline.co.uk/tol/business/law/columnists/gary_slapper/article3314787.ece) and answer the following questions in as much detail as possible:

1. How did the HL change the law?

2. Which method of avoiding precedent did they use to change the law?

3. Identify one reason in favour of the HLs ability to change its mind, and one against it.

4. What did they use to overrule themselves and who gave it?

5. Are they now allowed to avoid precedent completely?

6. When can they avoid precedent

7. Have they used the power a lot?

8. Give an example of a case which the HL have overruled. Why did they feel the need to overrule the previous decision?

9. Have the Lords ever refused to apply the statement?

10. Who should have priority: finality or justice?

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Judicial precedent Problem Questions:

Is the later court bound by the earlier?

1. A case is decided in the Crown Court. A similar case reaches the Court of Appeal 1 year later.

2. A case involving the civil law of negligence is decided in the Court of Appeal. One week later, another negligence case reaches the Court of Appeal but it has slightly different facts.

3. A case decided in the House of Lords in 1993. A similar case reaches the Court of Appeal in 2003

4. A case decided in the House of Lords in 1993. A similar case reaches the House of Lords in 2003

5. The Court of Appeal sets a precedent in a criminal case. Six months later, it wishes to change the precedent in a similar case

6. The house of Lords sets a precedent in 1954. A similar case reaches the House of Lords in 1965

7. The House of Lords sets a precedent in 1954. A similar case reaches the House of Lords in 1969

8. The divisional High Court decides a case in 2005. The High court ordinary hears a similar case in 2006

9. The House of Lords makes an obiter dictum relating to the criminal offence of attempted murder. The Court of Appeal hears an attempted murder case 3 weeks later.

10. The Privy Council sets a new precedent in an Australian case. A similar case reaches the House of Lords 1 year later.

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Court of Appeal Questions:

(b) Consider each of the following situations and explain whether or not the Court of Appeal can depart from the previous decision. (i) A case concerning a death resulting from medical negligence was heard by the Court of Appeal (Civil Division). A year later, a similar issue is being heard by the Court of Appeal (Criminal Division).

(ii) A case concerning breach of contract was decided by the Court of Appeal (Civil Division). Days later a similar issue is heard by the same court but the judges now feel that the decision should be different.

(iii) A case concerning murder was decided by the House of Lords. The Court of Appeal (Criminal Division) believes the decision of the House of Lords is out of date.

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Revision Questions on Judicial Precedent

1. What is common law? 2. What Latin term describes the purpose of the system of precedent? 3. Which part of the judgment is binding? 4. Why is the practice statement so important to the development of the common law?

5. Why is the criminal division allowed more flexibility than the criminal division of the Court of Appeal?

6. Why should we allow the Court of Appeal to overrule the House of Lords?

7. Why did the House of Lords refuse to agree with this?

8. Why is an efficient law reporting system so important?

9. Explain the four main types of persuasive precedent?

10. How is flexibility built into the system?

11. Give four advantages and four disadvantages

of precedent

12. Define the term retrospectively?

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JUDICIAL PRECEDENT
(OCR January 2008) Source While there are complex rules regarding when courts can avoid their own past precedent, one aspect of the doctrine of precedent is quite simple. A court in England or Wales is strictly bound to follow the decisions of a court of equal to or higher than it in the hierarchy of the courts, subject to well defined exceptions. In the important case of R v Holley (2005), the Privy Council, hearing an appeal from the court of appeal in Jersey, decided that the House of Lords was wrong in R V Smith ( Morgan James) (2000). Smith has been unpopular with both judges and academics. However, as we know, Holley is at best persuasive precedent. In fact, the Privy Council had already decided in previous cases, that where a case before it was in effect bound be English law, then it should follow it. On this basis the result of Holley should have been clear; the Privy Council should have followed Smith. In a more recent case, R V James and Karimi (2006), the Court of Appeal (Criminal Division) had to consider whether to apply Smith or whether it had, in fact, been overruled by the Privy Council in Holley. The Court of Appeal chose the latter view and held that, in exceptional circumstances, a decision of the Privy Council can take precedence over a decision of the House of Lords. What the Court of Appeal did in James and Karimi was, in effect, to overrule the precedent of a higher court. Adapted from, A Level Law Review Vol 2, No1, Chris turner, Philip Allan updates. Answer all parts. (a) The Source refers to persuasive precedent. Using the Source and other cases, describe how persuasive precedent works (b) Consider each of the following situations and explain how the doctrine of precedent will apply. i. ii. iii. A case comes before the House of Lords in 2008. There is a previous precedent decided by the House of Lords in 1951. A case comes before the Court of Appeal (Civil Division) in 2008. There is a previous decision by the House of Lords in 1980. A case comes before the Court of Appeal (Civil Division). There are two past conflicting precedents, one from the House of Lords in 1995 and the second from the Privy Council decided in 1999.

(c) The Source describes how lower courts can avoid past decisions of higher courts in exceptional circumstances. (i) Using the Source and other cases, explain how lower courts can avoid the doctrine of precedent (ii) Discuss the advantages and disadvantages of giving the lower courts more flexibility in avoiding the doctrine of precedent.

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OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Regina v. Bentham (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) [2005] UKHL 18 LORD BINGHAM OF CORNHILL My Lords, 1. Can a person who has his hand inside a zipped-up jacket, forcing the material out so as to give the impression that he has a gun, be held to have in his possession an imitation firearm within the meaning of section 17(2) of the Firearms Act 1968? That is the short question raised by this appeal. Her Honour Judge Badley, sitting in the Crown Court at Preston, ruled that he could and the Court of Appeal (Criminal Division) (Kennedy LJ, Curtis and Forbes JJ: [2003] EWCA Crim 3751, [2004] 2 All ER 549, [2004] 1 Cr App R 487) upheld that decision. The appellant, who pleaded guilty on the basis of the judge's ruling, challenges its correctness. 2. The relevant facts are very short. Early on the morning of 24 May 2002 the appellant broke into the house of his former employer A and went to the bedroom where A was sleeping. He had his hand inside his zipped-up jacket, forcing the material out so as to give the impression that he had a gun, pointing towards A. He demanded money and jewellery, threatening to shoot A if he did not comply. In fear, and believing that the appellant was in possession of a gun, A handed over some money and the appellant left. The appellant later confided to a third party G that he had put his fingers inside his jacket when he had committed the robbery, to give the appearance of having a gun. When G made a statement recording this, the appellant tried to persuade her to retract it. An indictment containing 3 counts was preferred against the appellant, charging him (in count 1) with robbery contrary to section 8(1) of the Theft Act 1968 and (in count 3) with acts tending and intended to pervert the course of justice. To these counts he pleaded guilty. He was in due course sentenced to 5 years' imprisonment on count 1 and 6 months' imprisonment consecutive on count 3. He did not seek to appeal against these sentences. This appeal concerns count 2, which charged the appellant with possessing an imitation firearm during the course of a robbery contrary to section 17(2) of the Firearms Act 1968. The particulars alleged that at the time of committing an offence specified in Schedule 1 to the 1968 Act, namely robbery, he "had in his possession an imitation firearm namely an unknown item concealed beneath his jacket designed to give the appearance that he was concealing a firearm." It is now accepted that the bulge in the jacket was caused by the appellant's hand and fingers. It was argued before the judge that on these facts the appellant did not have in his possession an imitation firearm, but she rejected this. She said: "Of course, an unadorned finger cannot have the appearance of being a firearm. But any piece of cloth which was puckered or gathered in such a way that could, to the eye of a terrified person, look like being a firearm is another matter entirely " In the light of this ruling the appellant pleaded guilty on the basis of the facts he asserted, which are now agreed, and the judge sentenced him to 18 months' imprisonment to be served concurrently with the robbery sentence. In para 25 of its judgment, dismissing the appeal against conviction, the Court of Appeal shared the opinion of the judge: "25. Consequently, if that approach is adopted in relation to the statutory words with which we are confronted, one is left, as it seems to us, in this position. In our judgment, the wording of the English statute as explained in R v Morris shows that the ruling of the circuit judge in the present case was right. If the matter had gone to trial (and what is important is the view of the jury), the jury would have had to consider whether at the critical time when threatening [A] and his partner the appellant had in his possession an imitation firearm. That is to say, having regard to the statutory definition, anything which had the appearance of a firearm. We cannot see that it mattered whether or not that item was made of plastic, or wood, or simply anorak fabric stiffened by a finger, if in the opinion of the jury at the relevant time it had the appearance of a firearm then, in our judgment, they were entitled to find that the offence was made out." 6. While an imitation firearm lacks the capacity of a real, loaded firearm to kill or injure, it has much the same capacity to frighten and enforce compliance, not least because many imitations are almost indistinguishable from the real thing and those threatened have little opportunity or inclination to examine the nature of the weapon used: see R v Avis and others [1998] 1 Cr App R 420, 423. So it is not surprising that Parliament has, since the Firearms and Imitation Firearms (Criminal Use) Act 1933, legislated to criminalise the use and possession of imitation firearms. In the 1968 Act as amended, sections 16A, 17, 18, 19 and 20 relate to both firearms and imitation firearms. In some of these provisions the offence is committed where a person has the imitation firearm "with him" for a prescribed purpose (section 18(1) and (2)) or in a public place without lawful authority or reasonable excuse (section 19) or as 16

3.

4.

5.

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a trespasser (section 20). In section 17(1) the offence is to use the imitation firearm in a prescribed way. In section 16A the offence is to have possession of an imitation firearm with a prescribed intent. Section 17(2), with which this appeal is concerned, also creates an offence of possession: "If a person, at the time of his committing or being arrested for an offence specified in Schedule 1 to this Act, has in his possession a firearm or imitation firearm, he shall be guilty of an offence under this subsection unless he shows that he had it in his possession for a lawful object." Robbery is an offence specified in Schedule 1. It is provided in subsection (4) that: "For purposes of this section, the definition of 'firearm' in section 57(1) of this Act shall apply without paragraphs (b) and (c) of that subsection, and ' imitation firearm' shall be construed accordingly." In section 57(1), "firearm" is defined to mean: "a lethal barrelled weapon of any description from which any shot, bullet or other missile can be discharged and includes (a) any prohibited weapon, whether it is such a lethal weapon as aforesaid or not . . ." Section 57(4) defines "imitation firearm" to mean: "any thing which has the appearance of being a firearm whether or not it is capable of discharging any shot, bullet or other missile." 7. 8. Conviction on indictment of an offence against section 17(2) carries a maximum sentence of life imprisonment, and is a serious offence for purposes of the Powers of Criminal Courts (Sentencing) Act 2000. In my respectful opinion, the conclusion reached by the lower courts is insupportable. One cannot possess something which is not separate and distinct from oneself. An unsevered hand or finger is part of oneself. Therefore, one cannot possess it. Resort to metaphor is impermissible because metaphor is a literary device which draftsmen of criminal statutes do not employ. What is possessed must under the definition be a thing. A person's hand or fingers are not a thing. If they were regarded as property for purposes of section 143 of the 2000 Act the court could, theoretically, make an order depriving the offender of his rights to them and they could be taken into the possession of the police. R v Morris (1984) 79 Cr App R 104, cited by the Court of Appeal, does not assist on this point, since the defendant in that case had with him, with intent to commit robbery, a separate object, namely two metal pipes bound together, which had the appearance of a double-barrelled shotgun. The criticisms of the Court of Appeal's decision made by Richardson (Criminal Law Week Issue 45, 15 December 2003, para 6 and Comment) and Professor Spencer ("Is that a gun in your pocket or are you purposively constructive? " [2004] CLJ 543) are in my opinion unanswerable. Parliament might have created an offence of falsely pretending to have a firearm (although not an imitation firearm). But it has not done so. And the appellant was not accused of falsely pretending to have a firearm but of possessing an imitation firearm. The offence would have been complete (if at all) even if, assuming there to have been a robbery, the alleged existence of an imitation firearm had not been disclosed to A. But both the lower courts attached importance to the impression made on the victim, a matter irrelevant to possession. It was, of course, very highly reprehensible conduct by the appellant to pretend that he had a gun, understandably frightening the victim, but it was conduct which the judge could take fully into account when passing sentence for the robbery, and it appears from her sentencing remarks that she intended to do so.

9.

10. Rules of statutory construction have a valuable role when the meaning of a statutory provision is doubtful, but none where, as here, the meaning is plain. Purposive construction cannot be relied on to create an offence which Parliament has not created. Nor should the House adopt an untenable construction of the subsection simply because courts in other jurisdictions are shown to have adopted such a construction of rather similar provisions. 11. Despite the argument for the Crown attractively presented by Mr Jafferjee, I would, for these reasons and those given by my noble and learned friend Lord Rodger of Earlsferry, allow this appeal and quash the appellant's conviction on count 2. LORD STEYN My Lords, 12. I have had the advantage of reading the opinions of my noble and learned friends Lord Bingham of Cornhill and Lord Rodger of Earlsferry. I agree with their views. I would also allow the appeal. 17

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LORD PHILLIPS OF WORTH MATRAVERS My Lords, 13. I have had the advantage of reading the opinions of my noble and learned friends, Lord Bingham of Cornhill and Lord Rodger of Earlsferry. For the reasons that they give I also would allow this appeal. LORD RODGER OF EARLSFERRY My Lords, 14. Dominus membrorum suorum nemo videtur: no-one is to be regarded as the owner of his own limbs, says Ulpian in D.9.2.13. pr. Equally, we may be sure, no-one is to be regarded as being in possession of his own limbs. The Crown argument, however, depends on the contrary, untenable, proposition that, when carrying out the robbery, the appellant had his own fingers in his possession in terms of section 17(2) of the Firearms Act 1968. I agree with my noble and learned friend, Lord Bingham of Cornhill, that for this reason the appeal should be allowed. LORD CARSWELL My Lords, 15. I have had the advantage of reading in draft the opinions of my noble and learned friends Lord Bingham of Cornhill and Lord Rodger of Earlsferry. For the reasons which they have given I would allow the appeal.

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