Judicial Precedent

8 August 2016

In order for the system of judicial precedent to work, there must be rules for judges to follow to make sure that there is consistency in the law. One way of doing this is to have a system on hierarchy, where decisions (judgements) in the superior courts bind those of the inferior court. Some courts are bound by their own previous decisions. In England and Wales our courts operate a very rigid doctrine of judicial precedent which has the effect that: every court is bound to follow any decision made by a court above it in the hierarchy; and in general, appellate courts are bound by their own past decisions

Activity: Which courts come where in the hierarchy? Civil CasesCriminal Cases The European Court of Justice The ECJ is not part of the English court structure. It does not hear national cases. Under Article 234 of the treaty of Rome 1957, an English court may refer a point of European law to the ECJ for interpretation.

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This interpretation is binding on all courts in the European Union – All courts must then follow this point of law. The ECJ is not bound by itself. House of Lords/Supreme Court The Supreme Court is the most senior court in England and Wales.

Its decisions bind all other courts in the English legal system. The Supreme Court is not bound by its own past decisions, although it will generally follow them. The House of Lords was replaced by the Supreme Court from 1st October 2009. The Supreme Court will exercise the same jurisdiction as the House of Lords and the Law Lords will take office as Justices of the Supreme Court. Court of Appeal The Court of Appeal is bound by the decisions of the Supreme Court. It is also bound by its own previous decisions.

However, the case of Young v Bristol Aeroplane (1944) set out three exceptions when the Court can depart from its own previous decisions. High Court The High Court has two roles. It is a court of first instance and an appeal court. Has 3 divisions – Family Division, Chancery Division and the Queen’s Bench Division – each of these three divisions has its own Divisional Court. Lower courts and the High Court itself are bound by decisions made in appeal cases in the Divisional courts of the High Court – the Young v Bristol Aeroplane rule still applies though.

First instance decisions of he High Court must be followed by the lower courts, but not other High Court judges, although they are highly persuasive. Crown Court, County Court & Magistrates Court The inferior courts are not bound by their own decisions, nor do they bind other courts. This is because they do not make precedents; they just apply the precedents set by the higher courts. Activity: Complete the table below outlining the courts and precedent Court Court bound by it Courts it must follow European Court Supreme Court Court of Appeal Divisional Courts High Court Crown Court

County Court and Magistrates’ Court do not create precedent and are bound by all higher courts What is the difference between ratio decidendi and obiter dicta? What does a judgement contain? The judgment is a speech made by the judge giving (4 things): A summary of the facts A review of the legal arguments, i. e. the summary of the relevant law The reasoning for the decision (in appeal and civil cases) : the principles of law used – the ratio and obiter The decision itself (also in appeal and civil cases) What does Ratio decidendi mean? Reason for the decision: ratio for short

NB not the decision itself but the reason for making it Sir Rupert Cross: Any rule expressly or impliedly treated by the judge as a necessary step in reaching his conclusion It is the ratio that creates/is the precedent for judges in the future to follow It depends on the level of the court making the decision as to whether the ratio has to be followed by a later court (a binding precedent) or whether it merely has to be considered by that court. What does Obiter dicta mean? The remainder of the judgement is called obiter dicta (other things said) and judges in future cases do not have to follow it.

Sometimes a judge will speculate on what his decision would have been if the facts had been different. This hypothetical situation is part of the obiter dicta and the legal reasoning put forward in it may be considered in future cases, although as with all obiter statements it is not binding precedent. Types of Precedent There are two types of precedent: Binding persuasive A binding precedent is the part of a judgement that other judges have to follow. The ratio decidendi (reason for deciding) made by a judge high enough in the hierarchy will bind future decisions of other judges.

What is a binding precedent? A precedent from an earlier case which must be followed – Even if the judge in the later case does not agree with it But the facts in the later case must be sufficiently similar to those in the earlier case – And the earlier case must have been decided by a court which was senior/superior to or possibly at the same level as the later court What is a persuasive precedent? A persuasive precedent need not be followed, but it may be helpful to a judge making a decision. If a judge decides to follow a past decision that was not binding, the decision is said to be persuaded.

Persuasive precedents include: How precedent works? Follow If the material facts of a case are significantly similar to an existing precedent, the judge should always follow the previous decision. Overrule A superior court may overrule the decision of a court below it and therefore change the law. Pepper v Hart (1992)

Reverse A superior court may change the outcome of a case from a lower court based on the same law, e. g. the Crown Court applies the existing law and finds the defendant guilty, whereas the Court of Appeal finds the person not guilty when applying the same law. Distinguish If the facts of a case are significantly different from the facts of an earlier case, the judge does not have to follow the precedent that is already established. Balfour v Balfour (1919)

Practice Statements The House of Lords used to be completely bound by its own decisions unless the decision had been made in error. Why do you think that this might have been a problem? What would the consequences of the House of Lords not being able to overrule its own decisions have been? In 1966, the House of Lords passed the Practice Statement, which allows it to change one of its previous decisions when it appears ‘right to do so’, e. g. R v Howe (1987) overruled DPP v Lynch (1973), and R v Shivpuri overruled Anderton v Ryan (1985). Key Facts 1898

House of Lords decides in the case of London Tramways that it is bound to follow its own previous decisions 1966 Issue of the Practice Statement. House of Lords will depart from previous decisions when “it is right to do so” 1968 First use of Practice Statement in Conway v Rimmer (1968) 1980s and 1990s House of Lords shows an increasing willingness to use the Practice Statement to overrule previous decisions In Austin v London Borough of Southwark (2010), the Supreme Court confirmed that the power to use the Practice Statement had been transferred to them.

Law Reporting It is essential for judges to research decided cases before they make a decision in case a precedent binds them. Therefore, it is important that all cases are well documented. Law reporting became more comprehensive and systematic when the Incorporated Council of Law Reporting was established in 1865. It is responsible for a series of reports known as the Appeal Cases (AC), which covers cases from the House of Lords, Court of Appeal and all three divisional courts of the High Court. It publishes a weekly law report.

There are still private law reports – All England Law Reports – published by Buttersworth since 1936 Some are published in the media – The Times, Guardian, Independent. Journals – New Law Journal, Law Society Gazette Records of decisions are also kept online – LEXIS, JUSTIS, WestLaw Activity: Finding Law Reports Search at least one website and find a recent law report. You might want to use the following sites. www. lawreports. co. uk – the daily notes section gives summaries of recent important cases www. supremecourt. gov. uk – this has reports of Supreme Court judgements

www. parliament. uk – this has reports of the House of Lords judgements for 1996 to 2009 www. bailii. org – this has cases for the High Court and the Court of Appeal Please provide a brief summary of the report you have found/researched. What were the facts of the case? Can you find the ratio decidendi?

Advantages and Disadvantages Advantages Disadvantages Certainty: Because the courts follow past decisions people know what the law is and how it is likely to be applied in their case; it allows lawyers to advise clients on the likely outcome of their cases

Rigidity: The fact that the lower courts have to follow the decisions of higher courts together with the fact that the Court of Appeal has to follow its own decisions can make the law too inflexible so that bad decisions made in the past continue to be followed. There is the added problem that so few cases go to the Supreme Court. Change in the law will only take place if parties have the courage, the persistence and money to appeal their case Consistency and fairness in the law: It is seen as just and fair that similar cases should be decided in a similar way. The law must be consistent.

Complexity: Since there are nearly half a million reported cases it is not easy to find all the relevant case law. Another problem is the judgements themselves which are often very long with no clear distinction between comments and the reasons for the decision. This makes it difficult in some cases to extract the ratio decidendi; indeed in Dodd’s Case (1973) the judges in the Court of Appeal were unable to find the ratio in a decision by the House of Lords Precision: As the principles of law are set out in actual cases the law becomes very precise; it is well illustrated and gradually builds up through

the different variations of facts in the cases that come before the courts Illogical distinctions: The use of distinguishing to avoid past decisions can lead to “hair splitting” so that some areas of the law have become very complex. The differences between some cases may be very small and appear illogical Flexibility: There is room for the law to change as the Supreme Court can use the practice statement to overrule cases. The use of distinguishing also gives all courts some freedom to avoid decisions and develop the law

Slowness of growth: Judges are well aware that some areas of the law are unclear or in need of reform, however they cannot make a decision unless there is a case to be decided. This is one of the criticisms of the need for the Court of Appeal to follow its own previous decisions as only about 50 cases go to the Supreme Court each year. There may be a long wait for a suitable case to be appealed as afar as the Supreme Court Time-saving: Precedent can be considered a useful time-saving device. Where a principle has been established, cases with similar facts are unlikely to go through the lengthy process of litigation

Test Yourself 1) The court of appeal has to follow decisions of courts above it in the hierarchy. Which courts are these?

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