The uneasy relationship between legislation and judge made law

This post has been contributed by Professor William Wilson, Module Convenor for Criminal law.

One of the themes which will emerge in your studies of criminal law is the uneasy relationship between legislation and judge made law.  If legislation is thought to be flawed does this justify judges developing law to fill the gap, or alternatively to eradicate what is thought to be an undesirable moral or political error.  There are numerous examples in your Study Guide of judges doing just that, not least in the first introductory chapter which talks of the case of Ireland and how the House of Lords added a meaning to the notion of ‘assault’ and ‘bodily harm’ which was not intended by the original legislators.

More often than not, however, judges, despite their misgivings, uphold the existing law on the basis that our elected representatives rather than they are the appropriate authority for changes in the law.  This is the leitmotiv behind successive failed attempts to change the law on assisted dying.  See for example the discussion at 7.1.2.

A recent development points up this uneasy relationship.  In 1975 in the case of R v Quayle et al [2005] EWCA Crim 1415 the defendant raised the defence of necessity in answer to a charge of possession of cannabis with intent to supply under the Misuse of Drugs Act 1971.  The cannabis was to be supplied to people who suffered from severe pain stemming from, among other things, Crohns disease and arthritis.  The Court of Appeal ruled that the defendants’ belief that such supply was justified because it was the lesser of two evils was not capable of overriding the legal prohibition on supply of cannabis.  Furthermore, juries could not be asked to balance whether an individual’s needs outweighed the purpose of the legislative regime. This would allow juries to legislate.  For more on how the scope of the defence of necessity has been limited to ensure that citizens do not take ‘the law into their own hands’  see Wilson 10.6.

Earlier this year the parents of a young boy who suffered catastrophic epilepsy from birth petitioned the Government for a licence permitted them to administer cannabis oil, which has been medically proven to relieve the symptoms of chronic epilepsy and numerous other conditions, including Crohns disease, Tourette’s syndrome and other neurological conditions.  The licence was granted amid a huge outpouring of public support in June, and in October of this year the Home Secretary announced that legislation would soon be introduced to permit doctors to prescribe cannabis oil for medicinal uses.  It may be that this is the first small step towards the decriminalisation of cannabis for personal use, as has recently occurred in Canada.  For discussion on the decriminalisation of drug use see Wilson 2.2.C.3.

Returning to the question of assisted dying, this was an important feature in a case which featured the deceased, Mark van Dongen, who, in 2017, had applied for euthanasia at a specialist clinic in Belgium where the practice is legal.  The application was granted and Van Dongen’s life was terminated.  The unusual feature in this case is provided by the context in which this tragic event came about.  Two years earlier his former partner had thrown concentrated sulphuric acid over him, while he was sleeping, as revenge for having been jilted.  This left him blind, and paralysed and resulted in his leg being amputated.  He was also left in permanent, insufferable pain.  These facts together with  complications, which set in shortly before his medical termination ,led to his decision to seek assisted dying.  He had concluded that he would rather die than live with his injuries. The defendant, Wallace, was charged with murder but the judge at first instance withdrew the charge from the jury on the ground that the cause of death was not the throwing of the acid but the deceased’s own choice to terminate his life.  The jury convicted Wallace of throwing a corrosive liquid with intent, contrary to section 29 Offences Against the Person Act 1861.

On appeal the Court of Appeal held that it was wrong for the judge to withdraw the murder charge from the jury on the ground of causation.  Although the attack had occurred 2 years before the termination the events were clearly connected, and the deceased’s decision was not voluntary in the sense that it was his free choice.  The overriding issue, as it is in all cases in which causal responsibility is being attributed where there is more than one cause, is  ‘whether the acts of the defendant can fairly be said to have made a significant contribution to the victim’s death’.

Following a retrial earlier this year the defendant was again acquitted of murder and convicted of the section 29 offence.  The importance of this case is not the eventual jury verdict.  It was open to them to have convicted of murder but they clearly felt uneasy about doing so after such a long period.  What is significant is the Court of Appeal’s initial opinion that a decision to commit suicide as a result of wrongful action taken against the deceased by the defendant does not necessarily, as here, break the chain of causation linking act with death.  For discussion of how the conduct of the victim may affect the attribution of causal responsibility see Wilson 5.6.