The Right to Appeal and Workable Systems of Justice

AuthorRichard Nobles,David Schiff
DOIhttp://doi.org/10.1111/1468-2230.00403
Date01 September 2002
Published date01 September 2002
The Right to Appeal and Workable Systems of Justice
Richard Nobles and David Schiff*
This article explores the practicalities of a right to appeal. Appeals and appeal
systems are usually conceived of in terms of a top-down hierarchy, with appeals
functioning as an instrument for superior bodies to correct the decisions of and
otherwise to control inferior ones. A fuller appreciation of systems of appeal
places at least equal weight on the need for appeal bodies to establish stable,
workable relationships with the bodies which they supervise. The need for any
appeal system to sustain a workable system of justice refocuses attention from
hierarchical control to problems of deference by the superior bodies towards the
inferior ones. This way of looking at appeals has the potential to illuminate many
recent developments, and can be illustrated by describing recent reforms and
reform proposals to both civil and criminal justice
The aim of this article is to explore the practicalities of a right to appeal. In so
doing it tries to discern how the nature, functions and limitations of the functions of
appeals circumscribe such a right.
Appeals and appeal systems are usually understood in terms of the supervision of
inferior decision-makers by superior ones, with a view to providing the values of
accuracy, fairness, consistency, and a mechanism for the generation of rules. And
they are usually conceived of in terms of a top-down hierarchy, with appeals
functioning as an instrument for superior bodies to correct the decisions of and
otherwise to control inferior ones.1While these values and mechanisms apply to
some degree within any appeal system, a fuller appreciation of systems of appeal
places at least equal weight on the need for superior bodies to establish stable,
workable relationships with the bodies which they supervise. The need for any
appeal system to sustain a workable system of justice refocuses attention from
hierarchical control to problems of deference by the superior bodies towards the
inferior ones. From this perspective, rather different questions arise. How are the
superior courts in the hierarchy to be restrained? How is the work delegated to
inferior bodies able to remain delegated in the face of appeals? How are ideas of
legitimate decision making, which point to the necessity of a right to appeal,
resisted and countered? This way of looking at appeals has the potential to
illuminate many recent developments, and can be illustrated by describing recent
reforms and reform proposals to both civil and criminal justice.
ßThe Modern Law Review Limited 2002 (MLR 65:5, September). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.676
* Law Department, London School of Economics. We wish to thank two anonymous referees for their
comments on an earlier draft of this article.
1 Conventional textbooks on the English Legal System describe the formal structure of the courts,
correctly, in terms of hierarchy, but then proceed to attribute functions to appeal courts expressed
solely by reference to their formal superiority. See, as examples, J.R. Spencer (ed), Jackson’s
Machinery of Justice (Cambridge: Cambridge University Press, 8th ed, 1989) chs 10 and 21; R. Ward
(ed), Walker & Walker’s English Legal System (London: Butterworths, 8th ed, 1998) chs 20 and 24;
R. White, The English Legal System in Action (Oxford: Oxford University Press, 3rd ed, 1999) chs 9
and 16; M. Zander, Cases and Materials on the English Legal System (London: Butterworths, 8th ed,
1999) ch 7.
The nature of appeals
While the focus of this article is on appeals within the legal system, appeals play an
important role throughout society, and are ubiquitous in modern societies. When
any decision taken becomes available to be considered by a second person or body,
or becomes available to be reconsidered by the original person or body that made
the original decision, the conditions normally described as an appeal arise.2
Modern societies, as they have grown more complex, have larger numbers of
persons or groups with limited powers of decision making, or decision making for
which they can be held accountable to other persons or bodies. However, being
accountable and being subject to appeal are not necessarily the same thing. An
appeal body within a given institutional structure is a body with authority to
overturn a prior decision or to compel the original decision-maker to reconsider
their decision.3This feature of appeals, ‘going upwards’ to have a decision
changed, points to the hierarchical aspects of the process. But it also points
‘downwards’ to the problems of delegation. How can decisions that are delegated
remain so, in the face of rights to appeal? On what basis will those who have power
to overturn earlier decisions nevertheless defer to the decisions of their inferiors?
Rights to appeal create difficulties for delegation. The mere existence of a right
to appeal has the potential to threaten the delegate’s ability to deliver a final
decision. This problem is minimised when the decision has standard or routine
elements and where there is a consensus between the delegate and the superior
body on how the decision should be reached, and what the substantive outcome
should be. The reply on asking for a superior to countermand an inferior’s decision
is often: ‘It will not make any difference, the superior body will decide it the same
way’. To the extent that this reply is true, or at least believed to be true, there will
be little point in appealing, and the number of appeals can be expected to remain
small. Delegating routine decisions depends on those subject to the decision
understanding their routine nature and why appeals are unlikely to be successful. In
the absence of these conditions, decisions made by subordinates can only remain
unchallenged if there are hurdles placed in front of those who might otherwise
appeal. These can take many forms, both formal and informal, such as time limits,
costs,4delay, procedural technicalities, etc.
Greater problems arise if the task to be delegated is not standard or routine: if
there is more than one way to perform it and more than one possible outcome.
Here, if the superior is prepared to make the decision afresh, appealing can clearly
make a difference. Delegated decision making is not limited to slot machine
2 Normally described because, as Blom-Cooper and Drewry illustrate ‘Appeal . .. covers a multitude of
jurisprudential ideas. It means different things to different men, in different places at different times.’
L. Blom-Cooper and G. Drewry, Final Appeal: A Study of the House of Lords in its Judicial Capacity
(Oxford: Clarendon Press, 1972) 45. Chapter III of this book ‘The Nature of the Appellate Process’ is
a particularly useful background to the analysis presented in this article.
3 This does not mean that the word appeal cannot be used in other contexts. Take the example of a
game of cricket. When the fielding side believe that a batsman is out, they will appeal to the umpire.
Here the word appeal represents deference to the authority of a decision-maker to make a decision. It
can be distinguished from the use of the word to represent asking a higher authority for
reconsideration of an original decision, although these two uses of the word appeal have similar roots.
4 If the right to appeal is restricted by the resources required, or one’s status, then one has turned appeal
into a privilege, and the first instance proceedings into something which a privileged litigant can win,
but not lose. This point is of substantial practical significance. It might be that, under certain
conditions, what might have been thought of as the crucial question of whether there is equal access to
courts might in practice be the equivalent of the question of whether there is equal access to the
appeal courts.
September 2002] The Right to Appeal and Workable Systems of Justice
ßThe Modern Law Review Limited 2002 677

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