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Judicial decision making
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9 Certainty and uncertainty

The importance of certainty and uncertainty for lawyers

Watch the following video, which introduces some aspects of certainty and uncertainty, both important concepts for a lawyer.

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Transcript: Video 6 Certainty and uncertainty

Paul Troop
Legal rules can be certain most of the time, but there are circumstances where they will be uncertain. The legal philosopher H. L. A. Hart, who was based in Oxford, talked about the penumbra of uncertainty. Now, ‘penumbra’ is just a fancy word for half shade.
Where the light cast by the sun or a light shines on something, you’ll find that there’s an area which is definitely in the light, and there’s an area which is definitely in the shade. But between the two, there’s an area which isn’t quite in the light, and isn't quite in the shade, and that's the penumbra.
Now, legal rules are the same. There are circumstances where the rule definitely applies, and there’ll be circumstances where the rule definitely does not apply. But sometimes there's a small area-- the penumbra of uncertainty-- where it's not clear whether the rule applies or whether it doesn't.
So Hart suggested there are at least two reasons why legal rules were uncertain. The first is a problem with human language. It’s very difficult to explain everything perfectly clearly with human language, as opposed to computer language. And secondly, it’s sometimes very difficult for the rule-maker-- parliament or a judge-- to predict every possible circumstances where the rule might apply.
A famous legal example of uncertainty is whether or not a Jaffa cake is a cake or a biscuit. The issue matters very much to the producers of Jaffa cakes, because cakes are VAT-free-- VAT-exempt - so they don't need to pay tax, whereas there is tax on biscuits. Now, a Digestive is clearly a biscuit, whereas a Battenberg is clearly a cake. But Jaffa cakes fall somewhere in the penumbra of uncertainty.
They're small like a biscuit. They’re covered in chocolate like a biscuit. They're sold in packs like a biscuit. But they’re soft like a cake, and many of the ingredients are the same as cakes.
This issue was the issue in the real life case of United Biscuits in 1991. And in that case, the judge in the VAT Tribunal decided that a Jaffa cake was a cake, which was good news for the manufactures of Jaffa cakes.
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Video 6 Certainty and uncertainty
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After watching the video introducing the idea of uncertainty and how courts grapple with it, you will have a chance to grapple with a challenging case yourself in the next activity.

Activity 7 Is it a crisp?

Timing: Allow about 30 minutes

In this activity, you get to decide a similarly uncertain rule as in the Jaffa Cake case discussed in the previous video. This is whether Pringles should be treated like crisps or not. Generally VAT does not have to be paid on food, but crisps are an exception. When the issue first arose, schedule 8 of the the VAT Act 1994Footnote 10 said that the following would incur VAT:

Any of the following when packaged for human consumption without further preparation, namely, potato crisps, potato sticks, potato puffs and similar products made from the potato, or from potato flour, or from potato starch, and savoury products obtained by the swelling of cereals or cereal products; and salted or roasted nuts other than nuts in shell.

The decision made a difference of around £20m in taxes per year!

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Figure 14 A tube of Pringles, a savoury snack. But is it a crisp or not?
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An image of a red Pringles tube with Pringles coming out of the open top.

Figure 14 A tube of Pringles, a savoury snack. But is it a crisp or not?

You may be relatively familiar with the snack known as Pringles, but if you are not, the facts as found by the VAT tribunal were that Pringles:

  • Were made from potato flour, corn flour, wheat starch and rice flour together with fat and emulsifier, salt and seasoning.
  • Were manufactured by mixing the dry ingredients into dough with water and emulsifier, cutting shapes out of a dough sheet, frying it for a few seconds, adding oil and salt, cooling and then adding flavours.
  • The manufacturing process caused oil to go into the spaces throughout the texture of the product replacing the water content removed during the frying. This gave the ‘mouth-melt’ feel when eaten. For potato crisps most of the fat stays on the surface.
  • Had a regular shape in the form of a saddle, which aids stacking them enabling high production speeds. They were a uniform pale-yellow colour, which is paler than a potato crisp. They had a crisp texture.
  • Had an amount of potato flour of around 40%.

In the text box below, write a passage imagining you are a judge applying the provision of the VAT Act 1994 above to these facts. When you have done this, vote in the poll below. Once you make your choice you will be able to see what others thought.

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Comment

This was the issue for the Court of Appeal in the case of Proctor & Gamble v HM Revenue & Customs.Footnote 11 The judges in the various courts struggled with the question! The VAT Tribunal judge (see Proctor & Gamble UKFootnote 12) first ruled that they were crisps, but at the first appeal to the High Court, the judge thought that they were not crisps (see Proctor & Gamble UK Footnote 13). Eventually the case was appealed further to the Court of Appeal which then decided that Pringles were crisps.

Footnotes

  1. 10 VAT Act 1994 c.24.Back to main text
  2. 11 Proctor & Gamble v HM Revenue & Customs [2009] EWCA Civ 407, [2009] BVC 461.Back to main text
  3. 12 Proctor & Gamble UK [2004] BVC 4,038.Back to main text
  4. 13 Proctor & Gamble UK [2007] BVC 4,107.Back to main text