Common Law – Why is it fundamental to the constitution?

JudgesCommon Law is an important source of the UK constitution. Common Law is otherwise known as ‘Judge made law’, it is the body of law that is made up from the precedents of previous court cases that have gone before. As a result of this, Common Law is evolutionary, it changes and develops changes through time as society evolves.

Common Law is inferior to Statute Law. This is because in Britain there is a doctrine of parliamentary sovereignty, meaning that no body can overrule Parliament. This means that if Parliament pass a law (called a Statute) it takes precedence over any Common Law rulings. However, a system of Statute Law cannot function adequately without Common Law. This is because it would be impossible for Parliament to be able to foresee every eventuality and every implication of any law that they pass. Given this, it is therefore essential that Common Law ‘fills the gaps’ in Statute Law.

Murder is an example of a Common Law offence. Murder was seen as a crime long before the existence of Parliament and therefore has existed in Common Law since at least Anglo-Saxon Britain. However, there have been some occasions when Parliament has stepped in to ensure certain issues have more clarity. An example of this is through the enactment of the Homicide Act (1957). This law largely abolished the doctrine of ‘constructive malice’, whereby someone could be charged with murder if they killed someone unintentionally whilst committing another crime. The Homicide Act also introduced a defence of ‘dismissed responsibility’, whereby the judgement of the person committing the crime was impaired by a circumstance beyond their control, for example a mental health issue.

The amendment was largely in reaction to a number of high profile cases, including that of Derek Bentley in 1953 and Ruth Ellis in 1955, both of whom had subsequently been hanged.

Derek Bentkey

Derek Bentley was convicted of murder in 1953 after the death of a police officer named PC Miles. Bentley and his co-defendant, Christopher Craig, had been attempting to burgle a warehouse when PC Miles intervened. Craig shot Miles dead, but was not executed as he was a juvenile. Bentley, however, was hanged after the jury heard he had shouted ‘let him have it’ whilst Craig wrestled with Miles. The prosecution interpreted this as an incitement to murder and the 19 year-old was hanged, calling much public outrage.


Ruth Ellis was a model. She was the last woman to be hanged in Britain. She was convicted of murdering her partner David Blakeley. She was in an abusive relationship and had a daughter that Blakely would not acknowledge. There was no doubt Ellis intended to kill Blakeley, however, it is clear she did so under some duress.

Common Law is built up from a huge range and number of judicial precedents. Sometimes, Common Law can become hazy and sometimes does not keep up with the developing attitudes of society. In this case, it is up to Parliament to legislate to clear up the matter.

image_miniA good example of this is found in the case of Wilkinson vs. Kitzinger. Sue Wilkinson and Celia Kitzinger married in Canada in 2003 after being a couple for 13 years. Wilkinson still lived and worked in England. In 2004 the UK Civil Partnership Act came into force, allowing same-sex civil partners similar legal right to married heterosexual couples. However, as Wilkinson and Kitzinger were already married, they wished their marriage to be recognised in the UK. The case went to the High Court in 2006. The High Court announced that the Wilkinson and Kitzinger’s relationship would be treated as a civil partnership, not a marriage. The court said that by “longstanding definition and acceptance” marriage was between a man and a woman.

Clegg and Cammy

The Marriage (Same Sex Couples) Act was a major piece of social legislation passed under the Coalition Government.

This led, in part, to a societal discussion over the merits of Same-Sex Marriage and the antiquated way in which common law was being applied. In 2013 Parliament cleared up the issue by passing the Marriage (Same Sex Couples) Act which equalised heterosexual and homosexual marriage.

There are undoubtedly problems with Common Law. It relies on the judicial decisions of judges, who are not elected and therefore not accountable to the public. A concern is also often raised that judges come from a predominantly conservative background, with many being Oxbridge educated, which therefore imbues a conservative political bias in judicial decisions. However, it remains an essential part of the effective operation of the UK constitution and the upholding of the Rule of Law.

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