The missing consideration of legal certainty

Examining the missing consideration of legal certainty in Lord Advocate’s Reference [2024] HCJAC 43.

Introduction

In Lord Advocate’s Reference [2024] HCJAC 43, reported as HMA v PG and RM 2024 SLT 1207, the Court of Criminal Appeal, comprising nine judges, held, in particular, that a de recenti statement by a complainer could corroborate their evidence on all the elements of the offence.

In so holding, the court overruled Morton v HMA 1938 JC 50 (Morton), in so far as it had been held there that such a statement was admissible only to support the credibility (and reliability) of the complainer’s evidence. Morton was a decision of five judges and could, under the applicable rules of precedent, be overruled by an even larger court.

The court’s reasoning in the Lord Advocate’s Reference was set out primarily in the opinion of the Lord Justice General (Lord Carloway), with shorter opinions being given by the Lord Justice Clerk (Lady Dorrian) and Lords Pentland, Matthews and Boyd of Duncansby; Lady Wise and Lords Armstrong and Beckett merely concurred with Lord Carloway.

Lady Paton alone dissented, and then only on the question of whether a de recenti statement could corroborate the identification of an accused as the perpetrator.

For convenience, the expression ‘a de recenti statement’ will be used here, as a technical term. Having said that, the Latin unhelpfully obscures the fact that, especially as regards  sexual offences, the statement may not have to be made immediately after the alleged incident. Indeed, Lord Carloway used “recent” at para 110(3) of his opinion.        

The court’s decision to overrule Morton has surprised, indeed alarmed, many practitioners in the criminal field and has attracted comment in the general media, which is most unusual for a decision on a point of law. 

The purpose of this article is not to address the court’s reasoning in the Lord Advocate’s Reference, particularly its treatment of the earlier authorities, nor does it address the very practical question of whether the decision can rationally be limited to sexual offences. The present writer leaves that task to those who are equipped to perform it.

Rather, this article addresses a matter that was not considered by the court, although it might be thought to have been fundamental in deciding whether to overrule Morton.

Legal certainty

That matter is the aspect of the principle of legal certainty which restricts a higher court from exercising its power, under the rules of precedent, to overrule a decision of a lower court. The restriction arises because the earlier decision settled the law. For convenience, that aspect of the principle will be referred to here as ‘legal certainty’.

The House of Lords Practice Statement, the Supreme Court and the Privy Council

There is no doubt that the Supreme Court, like the House of Lords before it, gives effect to legal certainty.  

That was emphasised in the Practice Statement which the House issued in 1966 and in which it announced that it would no longer be bound by its own decisions. The Practice Statement included these clear words explaining why that power was to be infrequently exercised by their Lordships:

“In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law” [emphasis added].

Since 1966, that point as to the criminal law has been consistently repeated. To take an emphatic example, the Lord Chancellor (Lord Hailsham) said of the criminal law in R v Cunningham [1982] AC 566, at 581, that “certainty is indeed a condition of its commanding and retaining respect”.

A more recent statement to the same effect is in the speech of Lord Bingham of Cornhill in the civil appeal of Horton v Sadler [2007] AC 307, at para 31.

The Practice Statement applies equally to the Supreme Court (Austin v Southwark LBC [2011] AC 355; see the opinion of Lord Hope of Craighead, a former Lord President, at para 25). As regards the Supreme Court, the decision in JTI Polska Sp Z oo v Jakubowski [2024] AC 621 (JTI Polska) is the most recent authority on the Practice Statement. Although a decision on statutory interpretation, JTI Polska is instructive in the context of legal certainty. Lord Hamblen delivered the single judgment of the court, which included two former Scottish judges, Lords Reed and Hodge.

At para 38 of the judgment in JTI Polska, Lord Hamblen cited, with approval, a passage from para 64 of the judgment of the Privy Council, comprising nine judges, in Chandler v State of Trinidad and Tobago [2023] AC 285 (Chandler), which had been delivered by Lord Hodge and had concerned the constitutionality of a mandatory death sentence. The passage cited from Chandler was in these terms:

“The reasons why a court of final appeal must be very slow to depart from an earlier ruling are well known. One of the principal advantages of stare decisis is its contribution to legal certainty. It promotes the predictability of the law and assists the planning of human activity. In private law it assists the giving of legal advice and the settlement of disputes. It enables people to carry out commercial and other transactions with some confidence that their arrangements are not going to be undermined retrospectively” [emphasis added].

Although it was not cited in JTI Polska, the next sentence in Chandler is also very important in the present context and was in these terms:

“Similarly in public and in criminal law it facilitates the giving of legal advice both to the organs of government and to citizens who are affected by the coercive power of government” [emphasis added].

It was then emphasised that the Privy Council was mindful of the consequences of decisions involving sentences of death or of lengthy imprisonment.

Returning to JTI Polska, Lord Hamblen went on to say, at para 40, that the court would be “very circumspect” in deciding to overrule what appeared to be settled law. Among the circumstances in which it would do so were where the earlier case was impeding the proper development of the law or led to unjust consequences and where there had been a change in circumstances.

At para 44 of JTI Polska, Lord Hamblen said of the decision of the House of Lords, James Buchanan & Co. Ltd v Babco Forwarding & Shipping (UK) Ltd [1978] AC 141, which the Supreme Court was asked to overrule:

“In the light of the authorities on the 1966 Practice Statement, the appellants accepted that they had to show that Buchanan was untenable or manifestly wrong and that this is an appropriate case for the court to exercise its power under the 1966 Practice Statement” [emphasis added].

The same point was made, with equal emphasis, by Lord Reid, who in fact appeared as the Solicitor-General in Morton, in the criminal appeal of Knuller v DPP [1973] AC 435 (Knuller), at 455:

“I have said more than once in recent cases that our change of practice […] does not mean that whenever we think that a previous decision was wrong we should reverse it. In the general interests of certainty in the law we must be sure that there is  some very good reason before we so act” [emphasis added].

That passage from Knuller has been consistently approved in later cases, which include Austin v Southwark LBC, in the speech of Lord Hope of Craighead at para 26, and R v Cunningham, in the speech of Lord Edmund-Davies at 582. The approach which Lord Reid set out more than 50 years ago must itself be regarded as settled law.

It is implicit in those citations from Knuller and JTI Polska that it may be appropriate to leave it to the legislature to deal with any perceived difficulties in the settled law. That has also been said expressly, notably by Lord Scarman in Khawaja v Secretary of State for the Home Department [1984] AC 74, at 106.

The next point to be made on the Practice Statement concerns the scope of its application. Significantly, it has always applied not only to English appeals, criminal as well as civil, but also to appeals from the Court of Session and, on matters of human rights, to appeals from the Court of Criminal Appeal. In addition, the Practice Statement is in practice applied by the Privy Council, as Chandler shows very clearly.  

As regards Scottish appeals, the power in the Practice Statement has been exercised only twice. The first was Dick v Burgh of Falkirk 1976 SC (HL) 1, which concerned an action for damages for personal injury and in which the decision in Darling v Gray & Sons (1892) 19 R (HL) 31 was overruled.

The Practice Statement was expressly considered in Dick v Burgh of Falkirk, which usefully states the general point that, in deciding whether to overrule an earlier decision, the extent to which it has been relied on may often be decisive. In that regard, Lord Kilbrandon said, at 29, of employers and their insurers who had to respond to a claim: “But it cannot be said that this is a class of case in which persons may have acted in reliance on old-established law […].”

It need hardly be added that, as is quite clear from JTI Polska, reliance on earlier decisions in civil law is almost always very different from such reliance in the criminal field. 

The second Scottish appeal in which the power in the Practice Statement was exercised was Montgomery v Lanarkshire Health Board 2015 SC (UKSC) 63, which concerned medical negligence and in which the Supreme Court overruled Sidaway v Bethlem Royal Hospital [1985] AC 871. Curiously, the Supreme Court did not expressly mention the Practice Statement, but it clearly proceeded on the basis of a change in circumstances.

Other English decisions

In considering legal certainty, it is also very significant that, in English practice, that principle  also restricts the power of the Supreme Court to overrule decisions of lower courts.  

In Re Spectrum Plus Ltd [2005] 2 AC 680 (Re Spectrum Plus Ltd [2005] UKHL 41), a case in which one first instance decision was held not to settle the legal requirements for a fixed charge, Lord Hope of Craighead said, at para 63:

“The House’s Practice Statement […] reminds us that the use of precedent is an indispensable foundation on which to decide what is the law and how it should be applied in individual cases […] It promotes the degree of certainty that is needed for the guidance of those who must regulate their affairs according to the law” [emphasis added].

That decision, which was one by seven judges rather than the usual five, also confirmed the crucial point that overruling had retrospective effect; in other words, overturning the previous legal position did not apply only to subsequent cases.

In the civil appeal of Sudbrook Trading Estates Ltd v Eggleton [1983] 1 AC 444, which concerned an option to purchase, Lord Fraser, another former Scottish judge, also referred (at 486) to the Practice Statement and to its warning about retrospective disruption.

It is ironic here that in the very year in which Morton was decided, legal certainty was clearly described, and given effect to, in Admiralty Commissioners v Valverda [1938] AC 173. In that case, which concerned the Admiralty’s right to salvage, Lord Wright, with whom the other judges agreed, said at 194:

“This House has, no doubt, the power to overrule even a long-established course of decisions of the courts […] It is impossible to lay down precise rules according to which this power will be exercised but in general this House will adopt that course only in plain cases, where serious inconvenience or injustice would follow from perpetuating an erroneous construction or ruling of law […] If the law is now to be declared in a different sense, it must be by the legislature” [emphasis added].

Scottish cases on legal certainty

Turning to Scottish cases, they also clearly recognise that legal certainty applies to decisions of courts below what is now the Supreme Court.

In Nicol’s Tr v Sutherland 1951 SC (HL) 21, Lord Normand, another former Lord President, would have required a very clear case to justify overruling a line of Inner House authority on the interpretation of a provision in the Bills of Exchange Act (see above, at 32).

In the same case, Lord Reid said, at 43:

“The principle that questions which have not been considered in this House but have apparently been settled by decisions of lower Courts should not be re-opened after a lapse of time cannot, in my judgement, be confined to cases when people may be presumed to have made contracts or other arrangements in reliance on those decisions. In cases of this character the reasons against reconsideration are stronger than in other cases; but there are also other and more general reasons against unsettling what is apparently settled law” [emphasis added].

Nicol’s Tr v Sutherland is cited on this matter in Gloag and Henderson’s The Law of Scotland  (15th edition) at 1.56, although without any express reference to legal certainty.

In Baird v Baird’s Trustees 1956 SC (HL) 93, the House of Lords refused to reconsider the decision in Alves v Alves (1861) 23 D 712 on an aspect of the law of succession (the constitution of a fee), despite the suggestion in Mackenzie’s Trustees v Kilmarnock’s Trustees 1909 SC 472.

Lord Normand’s speech in Baird v Baird’s Trustees, at 107, included this instructive statement:

“The time has long passed when such a review would be permissible. Property has been enjoyed by persons whose right depended on the validity of the rule, which has now become part of the accepted law of succession” [emphasis added].

That statement is cited in Walker’s Scottish Legal System (3rd edition) at 458, although again without any reference to legal certainty.

More recently, in David T Morrison Ltd v ICL Plastics Ltd 2014 SC (HL) 222, Lord Reed said, at para 35, in the section expressly entitled “Legal certainty”:

“[…] careful consideration nevertheless has to be given to the overturning, with immediate effect, of an interpretation of a statutory provision relating to prescription which has been followed for many years. That is because of the potential impact on persons who have conducted their affairs on the basis of the existing interpretation and might be prejudiced by the change” [emphasis added].

Written by David Sellar, Faculty of Advocates