Judicial duties involve statutory interpretation, which Lord Bingham shouldered as serious burdens. The first example therefore concerns a creative statutory reading, and his subsequent rejection.
1. Two Destinations
Correlative to those duties are individuals' rights to have statutes applied to their cases in a fashion that is coherent with other norms and expectations. The second example concerns The Rule of Law.1
R v Bentham concerns the Firearms Act 1968 s 17(2).2 The appellant was convicted under this and other laws, but contests s 17(2)'s application to his circumstances in a successful attempt to have his sentence reduced.
1.1 One: Rejected Creativity
According to s 17(2) possessing an imitation firearm will exacerbate and indicate criminal wrongdoing during an arrest. This is sensible and clearly aims to protect arresting officers.
The Act is quite specific. For s 17(2) purposes 'imitation firearm' is defined in s 57, which proscribes items that behind clothes or material 'appear [to] be (…) firearm[s]'.3 This is to ensure the protection for arresting officers is not undermined by witty criminals who may later attempt to claim the concealed plastic AK47 was just a broom handle and a saucepan.
The problem for the House of Lords concerned the appellant's so-called 'imitation firearm'.4 In the robbery for which the appellant was arrested he pushed his fingers behind his jacket to give the impression he was armed. Logic seems to dictate that if he still had those fingers during the arrest, he still 'possessed' the means to intimate he held a gun. The prosecution therefore argued the appellant possessed an imitation firearm--defined in s 57--during his arrest--which violated s 17(2).5
Lord Bingham rightly held this proposition is ludicrous.
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 (…) be a thing[, which a] person's hand or fingers are not (…). 6Lord Bingham continues with the respondent's argument's implications: if one's fingers satisfied s 17(2), they would be possessed for other legal purposes, and therefore the judiciary or executive could deprive one of one's fingers, and one's rights to them.7
Lord Bingham proceeds with courage. He reaffirms drafters are free to legislate with broad definitions.8 The distinct absence of such breadth, however, is not to be inferred as forgetfulness.9 Moreover, the courts should not infer that clear statutes need later judicial broadening. This is especially true when later clarification adopts 'irrelevan[cies]'.10
In The Rule of Law's penultimate chapter Lord 'writing as Tom' Bingham discusses Parliamentary sovereignty:
1.2 Two: Sovereign People
The constitution should reflect the will of a clear majority of the people, and a constitutional change of the kind here contemplated should be made in accordance with that will or not at all.11The change to which he refers is similar to the proposal he faced in Bentham. He cites Lords Steyn and Hope as supporting the idea that Parliamentary sovereignty is founded in the common law--and therefore founded by the judiciary. But Lord Bingham asserts this is false. For that to be classed as axiomatic today, the notion would require change--and that change would need the people's support--because the change would render judges supreme. That is unacceptable in a tripartite system, where no one group should supersede the other two.
When faced with a legal question whose answer will alter legislative meaning, how far may judges depart from the ordinary? How creative are judges allowed to be when the result would dissolve long standing principles? Lord Bingham rejects the idea that Parliamentary sovereignty is founded only in common law. In that rejection, Lord Bingham confirms that judges cannot rescind that foundation today by overly-creative interpretation.
The reason the above is important is because it reflects Lord Bingham's attitude to Parliamentary sovereignty. This in turn is important because that attitude shows a reluctance blindly to accept conventional axioms. On the other hand, it shows a rigid conformity with the ideas behind those axioms. Lord Bingham implies Parliament's words must be read faithfully because the legislature speaks with the people's voice, and judges cannot usurp authority.
During statutory interpretation one may consider an Act's purposes or plain meanings. But one should not decide for one rather than the other if one's reasons are based on literary devices. Only legal devices will suffice.
Lord Bingham indicates that even the most persuasive arguments--for or against particular statutory constructions--should be analysed down to their most basic premises. Detailed analysis in this respect is likely to produce legally-adequate conclusions because those basic premises' ramifications may illuminate incoherent consequences.
Further, when interpreting Acts of Parliament, one must be attentive to constitutional issues. It is not enough to suppose a creative interpretation is useful in one case: such practices tend to become habits. When that occurs, an initially narrow and distinct but creative interpretation becomes the framework with which miscreant constitutional reformers may sneakily hijack.
Two underlying principles in Lord Bingham's method seem to be illuminated: interpret with rigour; and imagine the consequences.
R v Bentham is a short case and worth reading.
3. Further Reading
Tom Bingham's The Rule of Law is frankly a must read for early-career students and those thinking about starting law school. But even students well into their courses will benefit from the lucid overview Tom Bingham gives in this book. I highly recommend it. Personally, I wish I had read it between the first and second year of my LLB; it's content would have refreshed and consolidated my memory and provided a solid framework with which I could have assimilated all the complications of public and administrative law.
There are two essays about constitutional issues by Lord Bingham that may be of interest:
- Lord Bingham, 'A Written Constitution?' Judicial Studies Board Annual Lecture 2004 (accessed 18 September 2013); and
- Lord Bingham, 'The Evolving Constitution' JUSTICE Annual Lecture 2001 (accessed 18 September 2013).
1 Tom Bingham, The Rule of Law (reprint edn, Penguin 2011).
2 R v Bentham  UKHL 18 – (Lord Bingham).
3 See also ibid  (Lord Bingham).
5 ibid  (Lord Bingham) referring to Bentham's case history.
6 ibid  (Lord Bingham) (emphasis added).
8 ibid  (Lord Bingham).
9 ibid  (Lord Bingham).
10 ibid  (Lord Bingham).
11 Bingham, Rule of Law 168.
Created: 18 September 2013. Version 1.0.
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