Ignorance of the law is no excuse – Part 2
January 17, 2013 7 Comments
Part 2 of a 3 part post, part 1 is available here
2. Finding the law – Understanding and Accessing
And now we embark upon a treasure hunt to tax even Anneka Rice; How does an individual subject to the law find, understand and access it without going to the expense of hiring lawyers, particularly if like many you can not afford to do so?
You could start with your local library. Such establishments often have a supply of legal textbooks. Larger libraries may even stock the odd practitioners text. The problem I have encountered however is that many public texts held by libraries are often incomplete and sometimes years out of date (likely due to the prohibitive costs of such tomes which can run into the hundreds and sometimes thousands of pounds, a significant investment given the yearly regularity by which editions are updated).
Under such circumstances it is questionable that you will build a complete legal picture of any issue in question using such resources.
Dedicated Law libraries themselves are also likely to be off limits to non practitioners and students or will at least levy significant fees for non practitioner public access, for example the Law society Library charges £16.00 per day or £32.00 for 5 days.
University libraries while possibly allowing access are also likely to have specific membership requirements for non students but with limited access to facilities.
How then do you find the law if you are neither student nor practitioner?
You could try an online search for which there are a numerous free resources, some good, some not. Wikipedia for example has its uses, but as an authoritative and accurate site it is a total no no. There are many practitioner and firm websites that offer free guidance on legal issues, not to mention Government websites similarly offering guidance in for example consumer rights. These are however non primary sources and of guidance only. We still need to find the letter of the law.
For that you could try the Governments freely available statute database which again has its uses. However very often information held here can be months out of date or if up to date difficult to find if due to the nature of the search engine. It is often easy to find an out of date statute that has not been altered to take into account subsequent amendments with the nature of updating leaving something to be desired in terms of presentation. There is also the fact that you need to know what you are looking for, and you must remember that statutes are interpreted and applied by the courts, with such interpretations forming the precedent by which the courts will apply a provision in question. Given the wide powers of senior Courts to apply creative interpretive techniques to ensure statutory compliance with ECHR or EU obligations for example, it becomes possible that how you may read a provision is not how it will take effect in practice.
Considering statutes in isolation therefore does not give a complete picture. To paint that we need case law.
How then do we access case law on line? Again there are numerous free resources of high quality for example Bailli. There are also historic Hansard transcripts of decisions in the House of Lords, transcripts of Supreme Court decisions available through their website, decisions of the European Court of Human Rights or the European Court of Justice available through their respective websites, and other sources. It must be remembered however that some of these resources are also limited.
Bailli for example holds an incomplete collection, and the fact remains that you still need to know in some depth what you are looking for in terms of a specific rule of law, and how to find it within the case. Reading cases while interesting can be laborious, particularly when reports routinely run to tens if not hundreds of pages. It is also not always easy to determine the rule of law applied, a pain when all you want to do is find out the rule in question quickly without having to trawl through several hundred pages. Difficulties can be increased by the fact that for example in the Supreme court decisions are given in the form of opinion or speech by a panel of judges who may not always be in complete agreement. These opinions are often reproduced largely verbatim in case reports which can lead to confusion in determining the specific rule of law reached between numerous opinions.
Case reports are unfortunately not recorded in terms of the rule in question, you wont find for example ‘The case on murder’. In addition there are often many cases covering similar ground, and you also need to know whether a decision is still actually in force, something not readily apparent from a transcript and which requires further research with resources not readily available to the public. Many cases do have a preamble giving a summary of the issue and decision reached, but again this is a dilution of the decision and depending on the report read may not give full enough information. An example of a confusing rule is the famous case of Donoghue v Stevenson which produced two rules, one binding precedent regarding the specific facts of the case and one which was of opinion only and not binding but which went on to become influential in subsequent cases.
There is also the fact that the lower courts (county, magistrates, crown, tribunals) which conduct the vast majority of cases do not produce public reports, and some courts are so secretive that they may even conduct business behind closed doors away from the eyes of the public, such as the court of protection, and some cases involving issues of national security. The only real information available from lower courts is that reported through local and national media which can often be extremely unreliable, biased and almost certainly useless in terms of authority.
Beyond free sources most of the main authoritative and useful on-line databases such as Lexis Library or Westlaw are subscription based and typically cost several thousands of pounds; a significant investment placing access way beyond reach for the casual researcher and even many practitioners. Many firms and legal education providers have access to such databases, but this is of course available only to practitioners or students within such establishments. The public generally have no access, and even if they did, the problem of fragmentation of sources, interpretation and understanding remains. Not only do you have to know specifically what you are looking for with such resources, you need to be able to conduct productive database searches and then still need to piece together various statutory, case-law and commentary sources found and you still need to know how to use the various results that you find. This all requires specific legal research and interpretive skill sets available only through exposure to legal education or employment.
Lastly there is the fact that many primary sources of law are written and produced in such language that they may not always be easy to understand. Some provisions of statutes may tax even the most trained of lawyers, while I have seen some case reports that are written in such a flowery and convoluted language that they need to be read several times in order to understand, not to mention some old cases I have (not) enjoyed where judges unacceptably launch into entire paragraphs of Latin! This does not bode well for the casual reader. The simple conclusion is that law is just not written for everyone to understand.
This therefore means that the majority of exposure to law enjoyed by the public comes through a smattering of disjointed free sources and public perception by way of the media and statements of those in authority. Can such sources be trusted?
3. Public Perception
Much of the way that the public accesses legal issues is media based through the conveyance of information by way of often subjective and inaccurate reports on cases of public interest or through the media relating of political statements made by Parliamentarians.
In fact one body of individuals you would expect or at least hope would pass on an accurate picture of legal issues through the media would be those who actually make the law, members of parliament and Government ministers.
History is littered however with misinformation, subterfuge and complete misunderstanding of the law emanating from these very people. David Cameron’s recent deport first appeal second rhetoric for example (likely another attempt in a long line of conservative opposition going back to Thatcher to undermine Human Rights law) is a case in point. Then we have the infamous ‘Cat-gate’ scandal where home secretary Theresa May attempted to wrongly blame Human Rights law with a false mis-telling of a deportation case regarding a pet cat.
Human rights law is not alone in suffering within the political fog however. In 2011 for example then Justice Secretary Kenneth Clarke
caused a scandal over his misunderstanding of rape offences by claiming that rape had differing levels of seriousness, and that date rape was not as serious as forced rape. His statements received universal condemnation for an apparent lack of understanding and empathy regarding the offence. Importantly, as Justice Secretary and as a QC Mr Clarke should have been ideally placed to give an accurate definition of a particularly serious offence. Instead he was widely held to have presented an inaccurate definition of an offence clearly defined under s.1 of the Sexual offences Act 2003 which states:
S. 1 – Rape
(1) A person (A) commits an offence if—
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.
There is clearly no mention of varying degrees of seriousness. More on the Ken Clarke case here.
Similarly in recent months we have all seen the hideous and controversial Home Office produced TV advert regarding rape which (allegedly aimed at teenagers) shows a teenage male who by undergoing some kind of out of body experience watches himself rape a female trough a glass screen, and which ends with the statement ‘Sex with someone who doesn’t want to is rape’.
This statement is however a bit of a simplification of the offence under s.1. Indeed it implies that rape could be committed by anyone whether male or female. The advert also makes no definition as to the specific act of sex involved, and given possible public public perception of the word ‘sex’ and how it could include any number of varying acts outside of penetration, this means that the advert provides in essence an inaccurate and overly broad definition of Rape far beyond the specific statutory defined offence that it is.
It is also a fact that the offence under s.1 is clearly specific to and can only be committed by a male; there is no female equivalent of the offence. In fact within the Act the closest a female could get to committing rape against a male would be an offence under s.2 or 3 of the Sexual Offences Act. S.1 remains however off limits.
The advert is therefore capable of propagating a state endorsed yet inaccurate public perception of a clearly defined offence, bringing the public no closer to the actual law on the matter.
In other areas of the media the public are often presented with misleading and biased reporting on legal issues by media outlets that often appear to have an ulterior agenda to push. Often others attempt admirably to correct such mis-reporting, however the effect of such correction may stand little chance of reaching the wider audience that is exposed to bad reporting by media outlets with national readerships leaving mis-perception to stand.
In essence therefore, to the untrained and the trained, finding and accessing the law can be a minefield if not nigh on impossible for some. It really seems that while expecting to apply equally to all, the law nonetheless operates in a universe of practical understanding open only to a select few who chose to undergo legal training and who have the necessary skills and access to use it.
All others are merely subjugated in a world where ignorance of the law is not so much an excuse but an unavoidable reality perpetuated by a messy and publicly incomprehensible system of statutes, secondary legislation and case law mixed with hearsay, misreporting and public misinformation.
Yet for all, ignorance remains no excuse!
So what solutions are there to bring the public into a position that they could truly have access to a properly organised, unified, understandable and accessible legal system that could then be said to bind them with fairness and also importantly certainty?
Continued soon in Part 3.