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Hierarchy of authority? No, law reporting should not be black and white.

Hierarchy of authority? No, law reporting should not be black and white.

Posted by justis1 | 16 January 2015

What makes case law publications authoritative? That is something you often hear working in the legal publishing industry.

Traditionally one may be inclined to answer that the authority of bound and digital publications comes by virtue of their publication by the Incorporated Council of Law Reporting (‘ICLR’) for England and Wales; producers of the Law Reports (‘LRs’) and Weekly Law Reports (‘WLRs’). Previously barristers attending court produced the ‘nominate reports’, subsequently reprinted in one series and known as The English Reports, which we have access to at Justis.

The problem with the ICLRs criteria for reporting in publications such as those named above, is its exclusionary nature. Unless a case sets new precedent, or changes or clarifies an existing point of law, it is often assumed, incorrectly, that the case isn’t of sufficient important to warrant reporting. The hindrance of this approach however is that the reports are produced on a much less frequent basis than those featured in the Times Law Reports or Justis Irish Cases.

For up-to-date case law to be cited in court it is imperative that these smaller series exist. Not only do they cover a wider breadth of cases than reports such as the WLRs, they bring barristers and other legal professionals the most recent case law on particular practice areas before the bigger publications note them up and publish them. Moreover these collections often benefit from summaries and other ‘add-ons’, providing useful aids for the reader.

It is acceptable and established to rely on “unreported” cases or independent series. For instance in the Irish case of the Director of Public Prosecutions v Maresa Cagney [2013] 3 JIC 1101 where the Director of Public Prosecutions relied on the case of DPP v. Patricia Behan [2003] JIC 0304, in support of the proposition that failing to provide samples of her breath under section 13 of the Road Traffic Act 1994 Act was a strict liability offence with a limited defence.

In Jelena Voznuka v Governor of the Dóchas Centre, Mountjoy Prison [2013] IESC 33, the case of Rimsa v. Governor of Cloverhill Prison and ors [2010] 7 JIC 2802 was simply dismissed because the statute had been altered since its decision had been handed down. There was nothing calling in to question the actual authority of the case but rather its applicability to the point of law in question.

When judges are willing to cite a case in judgment from a series like the JICs, could this not go some way at “legitimising” the series as being authoritative in court? After all, reports found in the Times and Independent newspapers can be relied on in open court, as long as they are compiled by someone with appropriate qualifications.

Furthermore, if the legal profession was to completely discount series as being less official than the ICLRs, with its years of service, would this not disfavour the smaller legal publishers and other commercial enterprises such as newspapers, that have proven themselves worthy of reporting on cases.

Browse our extensive collections of case law from across the Commonwealth using JustisOne. 

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