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Monday, 22 February 2010

Supreme Court and Majority Judgments

A variation on a theme: being quoted in the Times (from http://timesonline.typepad.com/law/2010/02/supreme-court-of-majority-judgments-and-press-releases.html):

At least one disappointed Supreme Court watcher after last week's judgments lifting anonymity orders on terrorist suspects - and declaring that the order freezing their assets was unlawfully obtained.

James Wilson, Managing Editor, All England Reporter, is disappointed that despite Lord Phillips of Worth Matravers' (President) wish to have more majority judgments, there was not one in this case.

He said: "It is unfortunate that the Supreme Court in its first judgment of a case actually heard before it rather than the House of Lords did not take the opportunity to deliver a single majority judgment. Instead there is what the press release calls a "lead judgment", but this is endorsed only by three judges out of seven.

The lack of a single majority judgment renders it much more difficult for the Court to fulfil its core duties of explaining to the parties why each has won or lost, and to clarify the law. As Lord Bingham of Cornhill said in a speech a few years ago:

"First, whatever the diversity of opinion the judges should recognise a duty, not always observed, to try to ensure that there is a clear majority ratio. Without that, no one can know what the law is . . . "

The press release is a new and welcome innovation however. But for law reporters, this can create its own problems. Wilson notes: "This functions as a rudimentary headnote, though it has no authority, and indeed specifically states that it does not form part of the judgment. It is not stated whether the press releases are authored (presumably they are not) or approved (presumably they are) by the justices themselves.

"But the best that a press release (or indeed a proper headnote) can do when there are separate majority judgments is identify the separate holdings. The inconsistencies or other lack of clarity therein will remain. It is to be hoped that in future the Supreme Court will follow the practice of the Judicial Committee of the Privy Council and issue one leading judgment only, with any separate concurring opinion specifically identified as such."

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