Archbold v Blackstone

Posted on 31st Aug 2016 in ICLR News

True. The news that in July a small panel of judges (the Judicial Executive Board) decided that Blackstone’s Criminal Practice should replace Archbold as the standard text in the Crown Court is hardly front-page material. However, it’s precisely the sort of thing a law publisher with a criminal law background like me geeks out on.

The rough gist of the matter is as follows. For time immemorial, the standard commentary on the criminal law has been Archbold (even Horace Rumpole had a copy). The first issue of the iconic criminal bible was published in 1822 and was effectively unchallenged as the official text on the Crown Court bench until the early 1990s when Blackstone’s Criminal Practice came on the scene. Even then and for many years later, it was a pretty rare sight to see a copy of Blackstone’s clutched under the arms of barristers grafting away in the Crown Court.

Archbold’s dominance wasn’t wholly due to the quality of its commentary (which has always been very high). Instead, Archbold’s popularity is in no small measure due to the mundane but no less practical imperative that counsel and the judge are all quite literally looking at the same page in the same book.

When I was training for the Bar, I became aware of a sort of snobbery against the use of Blackstone’s in the same way a builder would probably look down his nose at any power tool not manufactured by Dewalt or Makita. For my own part, I always found Blackstone’s slightly more accessible than Archbold, but I always checked the latter after consulting the former just to ensure I covered all the bases.

It wouldn’t be appropriate for this blog post the offer any critical comparison of the two books (I wouldn’t want to put any noses out of joint at Thomson Reuters or Oxford University Press). That said, I do find the Judicial Executive Board’s decision, and it’s omission to consult more widely, a bit surprising.

The criminal law research ecosystem

It’s not clear at this stage how the JEB went about making this decision. Did it consult with any practitioners at all? Did it consult more widely with other Crown Court judges? Did it stop to consider how this decision might affect the broader process barrristers follow when conducting research in preparation for court?

Archbold sits within a fairly well developed research ecosystem that is alomost entirely controlled by Thomson Reuters (who must be less that thrilled at the JEB’s decision). The components of that ecosystem are as follows:

  • Archbold: the standard text on criminal law, evidence and procedure. Often the first-port-of-call in the criminal research journey.
  • The Criminal Appeal Reports: arguably the definitive criminal law law report series
  • WestlawUK: massive online legal research platform that hosts Archbold and The Criminal Appeal Reports alongside an ocean of other primary and secondary legal materials.

Now, let’s say I need to research a fiddly point on the admission of my client’s bad character. Habitually, I’d reach for Archbold first. Archbold would provide me with at least the basic outline of the issues I need to think about, along with plentiful reference to case law.

Having done the groundwork, my next move would be to turn to Westlaw to get my hands on the relevant cases applicable to the problem. The editors of Archbold understandably prioritise references to cases reported in the Criminal Appeal Reports over reports of the same case published by, say, ICLR or LexisNexis. That’s fine, because the the Criminal Appeal Reports are on Westlaw, so I can easily locate these cases using the references on the page in Archbold. The bridge between one medium to the other is comparatively seamless.

Archbold and Blackstone’s are clearly competitors, so it follows that the publishers of Blackstone’s will wish to avoid directing their readers to a Thomson Reuters service if at all possible. For example, Archbold cites R v Tirnaveanu [2007] EWCA Crim 1239 as R v Tirnaveanu [2007] 2 Cr App R 23 (the reference points to the report in The Criminal Appeal Reports – see Archbold at 13-6). The same case is cited in Blackstone’s as R v Tirnaveanu [2007] 4 All ER 301 (the reference points to the report in The All England Law Reports, published by LexisNexis).

OUP’s preference for All ER citations makes all the more sense when one factors in that both Blackstone’s and the All ER are available online exclusively through LexisLibrary.

So, if the JEB’s decision is followed through, the existing Thomson Reuters-dominanted ecosystem could be significantly disrupted.

Practice Direction conflict

It shouldn’t come as any surprise that publishers, so far as possible, aim to keep their reader within their own product walls. Thomson Reuters wants us to read their book (Archbold) and then come to their research platform (Westlaw) and read their law reports (The Criminal Apppeal Reports). Similarly, it appears OUP and LexisNexis have teamed up to achieve the same sort of thing.

The problem is that the JEB’s decision will potentially make it more difficult for criminal practitioners to comply with citation requirements buried in The Criminal Practice Directions [2015] EWCA Crim 1567 issues by the Lord Chief Justice just under a year ago. In those Directions, the LCJ laid down the following rule at D.6 of the Directions:

(i) Where a judgment is reported in the Official Law Reports (A.C., Q.B., Ch., Fam.) published by the Incorporated Council of Law Reporting for England and Wales or the Criminal Appeal Reports or the Criminal Appeal Reports (Sentencing) one of those two series of reports must be cited; either is equally acceptable. However, where a judgment is reported in the Criminal Appeal Reports or the Criminal Appeal Reports (Sentencing) that reference must be given in addition to any other reference. Other series of reports and official transcripts of judgment may only be used when a case is not reported, or not yet reported, in the Official Law Reports or the Criminal Appeal Reports or the Criminal Appeal Reports (Sentencing). (ii) If a judgment is not reported in the Official Law Reports, the Criminal Appeal Reports or the Criminal Appeal Reports (Sentencing), but it is reported in an authoritative series of reports which contains a headnote and is made by individuals holding a Senior Courts qualification (for the purposes of section 115 of the Courts and Legal Services Act 1990), that report should be cited. (iii) Where a judgment is not reported in any of the reports referred to above, but is reported in other reports, they may be cited. (iv) Where a judgment has not been reported, reference may be made to the official transcript if that is available, not the handed-down text of the judgment, as this may have been subject to late revision after the text was handed down. Official transcripts may be obtained from, for instance, BAILLI (http://www.bailii.org/).

So, on the one hand we have the LCJ essentially elevating The Criminal Appeal Reports to prime position, whilst on the other we have the JEB switching to a textbook that will actively avoid referring readers to cases reported in The Criminal Appeal Reports if at all possible.

This is strange. The elevation of The Criminal Appeal Reports to the preferred source of authority in criminal cases wasn’t an accident (although, I think it was a bad call). In setting out the order of preference for law reports in criminal cases, Lord Thomas CJ expressly revoked a similar direction issued by his predecessor Lord Judge in Practice Direction (Citation of Authorities) [2012] 1 WLR 780 insofar as it applied to criminal courts (see D.1 of the 2015 Directions).

If the powers-that-be are serious about compliance with Practice Directions, then the JEB’s decision to switch to Blackstone’s must surely require that the relevant parts of the 2015 Directions be revisited.

But, does it really matter?

I doubt it, but we’ll see. It just might have made more sense for the JEB to have reached out to practitioners to hear their thoughts on the matter. Unlike their more senior colleagues on the bench, criminal barristers don’t have a comprehensive research library laid out for them by the Ministry of Justice.

Daniel Hoadley, Barrister