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Common law insights: the historic traditions of the ‘Privy Council’

Common law insights: the historic traditions of the ‘Privy Council’

Posted by justis1 | 29 January 2014

The Judicial Committee of the Privy Council (JCPC): few are aware of the body; fewer still could define it.

But its influence is far-reaching: for 31 jurisdictions – a mixture of independent commonwealth nations, crown dependencies, overseas territories and British dominions, and notably including Jamaica and Trinidad – it remains the highest court of appeal. And its precedential powers are persuasive elsewhere.

Lord Neuberger JCPC Privy Council Justice

Lord Neuberger, one of the 12 Justices of the JCPC

The JCPC today

An arms-length body of the executive Privy Council (that is, the body of advisors to the sovereign overseeing specific matters of government business), the JCPC was created under section 1 of the Judicial Committee Act 1833. Confusingly the latter is often referred to simply as “the Privy Council”, in spite of the important need to retain a distinction betwee the two entities.

The process of appeals to the Committee is open to the monarch’s subjects, who “approach the throne for justice” with an appeal addressed to the Crown. Once received, the appeal is referred to the Committee who will “hear” the case.

A report documenting the latter’s advice will then be furnished to the Crown, who theoretically decides on the outcome of the appeal. But there’s no strict system of precedent at play when making these decisions. Rather, cases are persuasive, as established in Sinclair Investments (U.K.) Ltd v Versailles Trade Finance Ltd (in administrative receivership), [2011] 3 WLR 1153.

Here the Council held that the Court of Appeal (CA) should follow its own decisions in preference to those of the JCPC, unless there were doubts surrounding the CA’s decision-making.

Yesterday’s JCPC

The JCPC has not always been this way. In its older emanation, as the Court of Star Chamber, it was effectively the judicial arm of the King’s Council. Officially separated from the Council in 1485, so as to become a court of law in its own right, it began administering justice directly.

Matters brought to the court included allegations of public disorder, assault and riot. At the same time it also dealt with allegations of corruption by officials and of juries, among other disputes.

In The Case of Duels , 26th Jan. 13 James I. A. D. 1615 [2 Bacon’s Works, 563], brought by charge of Attorney-General Sir Francis Bacon against Mssrs Priest and Wright, Chief Justice Coke gave the leading judgment in the Star Chamber.

The case is fascinating for the commentary given on duels and their purpose. The challenge of a duel sent by Mr Priest and the carrying of it by Mr Wright led to Sir Francis remarking that a duel was “when revenge is extorted out of the magistrate’s hands, contrary to God’s ordinance”.

Pertinently, it was said that to assail revenge through battle of arms was the moment when “private men begin once to presume to give law to themselves and to right their own wrongs”.

In less archaic terms, a duel was an unlawful means for settling a dispute and against the will of God, as it typically meant one man robbing another of his life. A high misdemeanour, the Court sought to punish the preparation of duels for this was the “wisest and mildest” way to suppress them. To allow what was effectively a sentence of death to proceed, inevitably resigned the man who suceeded in the challenge to be capitally punished for his part.

What is incredibly important to recognise is that the insolence and bravery of the offences brought the offence outside the competancy of ordinary magistrates and judges. The pair were therefore fined, sent to Fleet Prison and were to present themselves at the next assizes to be held in “Surr[e]y”, where they were to acknowledge their high contempt and offence against God in face of the court and sitting judges, a record of which was to be published and distributed throughout the Kingdom.

During the reign of Charles I, the Court’s role changed. According to sources its focus was on hearing the cases of those persons deemed too powerful for “ordinary” judges to pass judgment on them. A superior voice of authority was necessary to adjudicate over the rich and influential of the realm. In spite of these benefits, it faced deep controversary over its supposed use for silencing political opponents prior to its abolition in 1641.

Tomorrow’s JCPC? Overseas discontent

The Committee has not been freed from criticism since then. The fact their Lordships sit in Westminster’s Middlesex Guildhall, the home of the UK’s Supreme Court, is understandably displeasing for those bringing appeals from abroad.

For those who seek to exhaust this final avenue, there is a great financial burden associated with bringing a challenge against a decision of their highest domestic court. Some would argue that without this change an individual’s access to justice could in fact be restricted. It is a fundamental principle of law that a person can attend court to hear the case against them, as well as to challenge a decision. Where there is a financial burden attached to this, it may rob a person of their right to due process.

This is one of the reasons presented by persons of Jamaica in their public plea to end appeals to the JCPC in favour of the Caribbean Court of Justice (CCJ) situated in Trinidad. Expenses would be more manageable particularly, according to an article in the Gleaner, where the Court exercised its roving function.

But, like most things in law, this isn’t the whole story. In a sister blog post, we discuss the vexed issue of capital punishment cases from the Caribbean that make their way to the JCPC.

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