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Shubtill v Director of Public Prosecutions: Difference between revisions
Shubtill v Director of Public Prosecutions (view source)
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{{a| | {{a|jclr|{{image|soup 2|png|}}}}<center>In the Contrarian’s Bench Division <br><br> | ||
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The “[[officious bystander]]” was, in MacKinnon LJ’s original reckoning, an ''objective'' measure, derived by reference to that hypothetical figure known to all in a modern society, the “amateur referee on Clapham Common”. Unlike her fellow hypothetical the [[reasonable person]], the officious bystander is not “devoid of human weaknesses, without a single saving vice”<ref>''[[Fardell v Potts]]''</ref>, but rather is shot through with them. He is, after all, ''officious'': pedantic, literal, punctilious, parochial, small-minded, given to wielding the small authorities life bestows upon him for the simple pleasure brought by wreaking inconvenience on others. | The “[[officious bystander]]” was, in MacKinnon LJ’s original reckoning, an ''objective'' measure, derived by reference to that hypothetical figure known to all in a modern society, the “amateur referee on Clapham Common”. Unlike her fellow hypothetical the [[reasonable person]], the officious bystander is not “devoid of human weaknesses, without a single saving vice”<ref>''[[Fardell v Potts]]''</ref>, but rather is shot through with them. He is, after all, ''officious'': pedantic, literal, punctilious, parochial, small-minded, given to wielding the small authorities life bestows upon him for the simple pleasure brought by wreaking inconvenience on others. | ||
But here is the thing: when it comes to deciding how such an officious bystander would have reacted to the complainants’ doltish conduct, we need not conjecture. There is no call for an ''imaginary'' onlooker, because we have an actual one: the appellant himself. The appellant is just the judgmental little twerp the court in ''Shirlaw'' had in mind. And nor need we ask him what he ''would'' have done ''—'' risking a convenient ''ex post facto'' reply: we can see what he ''did'' do. Would an officious bystander have considered this an open licence to tip soup upon the complainants heads? Answer, without a doubt: ''yes''. | But here is the thing: when it comes to deciding how such an officious bystander would have reacted to the complainants’ doltish conduct, we need not conjecture. There is no call for an ''imaginary'' onlooker, because we have an actual one: the appellant himself. The appellant is just the judgmental little twerp the court in ''Shirlaw'' had in mind. And nor need we ask him in the subjunctive what he ''would'' have done ''—'' risking a convenient ''ex post facto'' reply: we can see what he ''did'' do. Would an officious bystander have considered this an open licence to tip soup upon the complainants heads? Answer, without a doubt: ''yes''. | ||
Here we find a paradox: we fabricate our “objective” test from the lived experiences of ordinary people ''—'' each by its own terms subjective ''—'' as they are then assembled by those who sit in judgment from the bench. Somehow, the court must extrude from this collection of biases objective truth. We fear at its root they may be just the same. | Here we find a paradox: we fabricate our “objective” test from the lived experiences of ordinary people ''—'' each by its own terms subjective ''—'' as they are then assembled by those who sit in judgment from the bench. Somehow, the court must extrude from this collection of biases objective truth. We fear at its root they may be just the same. | ||