‘A Most Difficult Case’: On the Ratio of Gnango

Abstract

J C Smith once asked whether English law could `really afford the House of Lords as an appellate court' in criminal matters.1 Beyond the allegedly shaky reasoning which so irked Smith and others (such as Glanville Williams),2 it was common to find the Law Lords split 3:2 on important issues such as the definition of central criminal law concepts like recklessness,3 or the limits of consent in the law of non-fatal, non-sexual offences against the person.4 Within these slim majority decisions, it was often possible to detect plain disagreement, or at least distinct lines of argument. The result of this was that the ratio decidendi of many House of Lords decisions in criminal matters was difficult to state with precision. Less charitably, it has been alleged that the law was often left `far more uncertain than it was before the appeal' to the Lords.5 There would often need to be further decisions, typically by the Criminal Division of the Court of Appeal (CA), before the full impact of a House of Lords decision became clear. This might be contrasted with decisions of the CA. There, a real effort is made to present one judgment, which represents the considered view of the judges who heard the case.6 This approach is not perfect (for the simple reason that the CA is so overworked that two differently-constituted benches might conceivably hear two cases on the same issue at the same time and reach two mutually contradictory decisions), but it does at least reduce the margin for error when working out why a particular decision was reached. It is thus easier—for