Law Reports, Transcripts, and the Fabric of the Criminal Law—A Speculation

Publication Date01 June 2004
Date01 June 2004
DOI10.1350/jcla.68.3.227.34450
AuthorRoderick Munday
SubjectArticle
JCL 68(3).doc..Munday .. Page227
Law Reports, Transcripts, and the
Fabric of the Criminal Law
—A Speculation
Roderick Munday*
Abstract
Thanks to the advent of searchable, computerised archives of
unreported (but fully referenced) appellate decisions, anyone researching
a legal problem today has ready access to a vast mass of previously
concealed authorities. This article speculates on one of the troubling
possibilities this cornucopia brings with it: namely, that if one surveys the
full range of materials now accessible, one may actually need to re-
configure what were previously assumed to be settled bodies of knowl-
edge. Using the soon-to-be-defunct similar fact evidence principles as an
illustration, this article is not so much intended offer a proof of the thesis,
but to throw out a teasing question that, in truth, goes to the root of
English legal method.
‘When I write something, I think of it not as being factually true
(mere fact is a web of circumstances and accidents), but as being
true to something deeper. When I write a story, I write it
because somehow I believe in it—not as one believes in mere
history, but rather as one believes in a dream or an idea.’
Jorge Luis Borges1
As computerised databases began to take hold, it was apparent that the
pre-eminence of conventional law reports, and even the very concept of
reporting the law, could be altered forever. This article will ponder one
potential, long-term implication of the retention of computer-generated
transcripts of all judgments.
English lawyers have for long expressed concern at the sheer bulk of
case law at their disposal. Scholars have sought, in different ways, to
convey some sense of its magnitude. In 1951, at a time when recourse to
unprinted sources was comparatively rare, Glanville Williams reported
the melancholy fact that, ignoring the hordes of unreported cases, the
English canon comprised in excess of 312,000 reported cases.2 Twenty
years earlier, in a singular paper in the Juridical Review, a commentator,
evidently with time on his hands, had calculated of the English Reports
that ‘the type used would, if set in a straight line, extend to 1,100 miles;
and the same type on the printed page would cover 73 square miles’.3
Indeed, one could legitimately claim that anxiety over the available
quantity of reported (and, to a degree, unreported) case law has been in
some sort a constant of the common lawyer’s predicament. The fear that
* Fellow of Peterhouse, Cambridge.
A version of this article was delivered as a Twilight Seminar to Victoria’s Judicial
College at the Sir Zelman Cowen Centre, Melbourne (Australia) in December 2003.
I am grateful to Peter Mirfield for his comments on an earlier version of this article.
1 In C.-A. Michailescu (ed.), This Craft of Verse (Harvard University Press: Cambridge,
MA, 2000) 113–4 (Charles Eliot Norton lectures 1967–1968).
2 The Reform of the Law (Gollancz: London, 1951) 15.
3 The English Reports 1931 43 JR 96 at 99.
227

The Journal of Criminal Law
the case-law system might choke upon its own fecundity adheres to a
tradition traceable back to Coke, who, in the preface to the third volume
of his Reports, warned:
[I]n truth, if judges should set down the reasons and causes of their
judgments within every record, that immense labour should withdraw
them from the necessary services of the common wealth, and their records
should grow to be Elephantini libri of infinite length, and in mine opinion
lose somewhat of their present authority and reverence.4
Perhaps, the great mystery is that, as yet, no common-law system has
ever actually seized up.5
The volume of case law available to a lawyer today is daunting. In
reaction to this brimming cornucopia, courts have even experimented
with various no-citation rules, which seem to have exerted but marginal
impact.6 What is crystal clear is that the ready availability of transcripts
—now, computer-generated—has considerably aggravated matters.
Many judges nowadays firmly believe that too many cases are cited in
argument before them; many lawyers consider that too many author-
ities have to be trawled during legal research; it is widely feared that the
law runs the risk of becoming even less accessible to lawyers, let alone to
the public it is meant to serve; and so on.7
The legal system, meanwhile, has had no option but to adjust to these
deteriorating conditions. On the one hand, technological developments
have been embraced, and a new form of computer-friendly ‘neutral
citation’ has been adopted, making ready identification and retrieval of
almost any and every decided case possible.8 Indeed, neutral citation
now takes precedence in court over conventional law report references,
which themselves for some years have been ordered into a semi-
formalised hierarchy of citation.9 As against this, in a bid to counteract
the perceived ill of over-citation, the courts have grown more fierce in
forbidding the citation of certain species of unreported authorities.10
Few, however, can imagine that such modest palliatives will have much
effect.
4 2 Co Rep iii (Butterworth: London, 1826), J. H. Thomas (ed.).
5 See, R. Munday, ‘New Dimensions of Precedent’ (1978) XIV JSPTL (NS) 201; ‘Case
Law and the Computer’ (1984) 1 Yearbook of Law, Computers and Technology 136.
6 For example, Roberts Petroleum Ltd v Bernard Kenny Ltd [1983] 2 AC192. See
R. Munday, ‘The Limits of Citation Determined’ (1983) 80 LSG 1337.
7 See, e.g., the judgment of Laddie J in Michaels v Taylor Woodrow Developments Ltd
[2001] Ch 493; and Chase v News Group Newspapers [2002] EWHC 1110 at [48], per
Eady J.
8 See Practice Direction (Judgments: Form and Citation) [2001] 1 WLR 194, discussed in
R. Munday, ‘“Official” Law Reports, Neutral Citation and other Curiosities: Another
Visit to the Grand Canon’ (2001) 165 JP 342 at 344–5.
9 See Practice Direction (Court of Appeal: Citation of Authority) [1995] 1 WLR 1096. This
hierarchy produces another order of problems: see, e.g., R. Munday, ‘The “Official”
Law Reports’ (2001) 165 JP 162.
10 R. Munday, ‘Over-Citation: Stemming the Tide’ (2002) 166 JP 6–9 (Part I); (2002)
166 JP 29–32 (Part II); and (2002) 166 JP 83–7 (Part III). A tendency towards over-
citation of course will be endemic to almost any common-law system. For a recent
study of this phenomenon in the USA, where the difficulties appear even more
acute, see K. Laretto, ‘Precedent, Judicial Power, and the Constitutionality of “No-
Citation” Rules in the Federal Courts of Appeals’, 54 Stan L Rev 1037 (2002).
228

Law Reports, Transcripts, and the Fabric of the Criminal Law
It is tempting to imagine that English law’s state of information
overload presents both the academic lawyer and the law reporter with a
prime opportunity to reinforce their status within the legal structure.11
The law reporter’s function in winnowing the durable decisions of clear
legal import from those that are merely evanescent or iterative is of
course already well established. The more delicate relationship between
the so-called ‘academy’ and practising lawyers, however, is now attract-
ing increased attention12—not least because of the radically different
way in which the relationship between these two branches of the
profession is perceived to have developed in other jurisdictions. Any
eventual roles the academic and the reporter play in mediating the
teeming midden mound of materials, however, may produce intriguing
by-products. For in the course of sifting, auditing and marshalling this
virtually limitless stockpile of retained material, it may be possible—
indeed, it may even become necessary—to reconfigure what were as-
sumed to be settled legal principles. True, in the past revisionism was not
exactly unknown. However, the very scale of the material a lawyer can
now survey could easily make such events both of more frequent
occurrence and of more profound effect.
The demarcation line between reported and unreported case law has
always been porous. However, the virtually universal accessibility of
judgments today, regardless of whether or not they happen to have
caught a reporter’s eye, can breed curious consequences. Printed law
reports have to be selective; of necessity, they present an incomplete
legal record. This record may not be as serendipitous as the archive of
Trevelyan correspondence, of which I have heard it said—although the
story is almost certainly apocryphal13—the contents are eccentrically
incomplete owing to the local mice’s pronounced predilection for the
Trinity College notepaper.14 Nevertheless, we know that some judicial
decisions of real significance have temporarily gone missing in the
past,15 whilst many others doubtless have permanently repaired to
oblivion—a process akin to developmental biology’s apoptosis. What is
different today is not only that lacunae within the reported record can
11 This theme is pursued in R. Munday, Chaos Tempered by Fisher’s Digest (paper
published on the ICLR website). The title was borrowed from one of Sir Frederick
Pollock’s arresting characterisations of English law.
12 See, e.g., Neil Duxbury’s recent study, Jurists and Judges: An Essay on Influence (Hart
Publishing: Oxford, 2001).
13 Apocryphal or not, it hardly matters. As Jorge Luis Borges repeatedly asserted, what
often counts is the metaphor or the symbol, not the facts. If only for this reason, I
have made no sensible effort to verify the tale. See, e.g., ‘The Story of the Warrior
and the Captive’ in A Personal Anthology (Grove Press: 1967) 172: ‘Many conjectures
may be made to explain Droctulft’s act; mine is the most...

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