Just how far are judges allowed to go in shaping and creating the law?
The traditional view of a judge was of an informed but neutral mouthpiece. Far from creating law they simply uncovered the law in all its pre-formed glory. It was a ‘declaration’ not a formulation.
This is unrealistic. Judges, being human, are far from neutral. If this is so then it is fair to critically examine what they say.
A good early activity is to get students involved at the sharp end of the law making process. Let them be the judge. Let them develop criminal concepts. Compare them with the actual judgments. This is both an empowering and analytical activity which helps to promote a healthy critical approach.
Take the issue of the escaping victim who, whilst fleeing their attacker, does some damage to themselves. How do the courts allocate the blame?
- In pairs read through the scenarios below.
- Devise an instruction that a judge would you give to a jury before they retire.
- Try to make sure that the jury are not simply deciding out of sympathy for the victim.
- Try to make sure they are not dismissing the acts of the ‘attacker’ without proper consideration.
Alexia hitches a lift home in the car of a friend’s brother. Whilst driving he makes a sexually explicit suggestion to her. Then he leans over to her as if he is about to grab her. Alexia jumps out of the car. She suffers serious injury.
Play Devil’s Advocate – prompts here could include:
- What other course(s) of action were open to A?
- What are the downsides of each course of action?
- Isn’t it obvious that A caused her own injuries?
Whilst being looked after by his abusive relative Martin, aged three, becomes terrified. Whilst running away he falls downstairs and is killed.
Prompts here could include:
- How is this situation different from Scenario A?
- What difficulties arise from the victim being so young?
- How can you be sure that you are not overly influenced by the age of the victim?
The scenarios above are loosely based on the cases of Roberts (1972) and Mackie (1973).
Now compare your tests to the real judgments. How are they similar? What differences do you note? What have you discovered about the role of the judge?
The Test in Roberts  Crim. L.R. 27
The jury had to choose between two possibilities:
1. Was jumping from the car a reaction that was reasonably foreseeable?
2. Or was it ‘so daft’ that no reasonable person could have been expected to foresee it?
(NB. Comforting to note that judges do sometimes use ordinary words too!)
The Test in Mackie  Crim. L.R. 438
1. Was the boy in fear of Mackie?
2. Did that cause him to try to escape?
3.Was the fear well-founded?
Both Roberts and Mackie were found guilty.
Teacher of Law