Judicial Precedent - an essay on the hierarchy of the English courts and how courts uphold the idea PDF

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Judicial PrecedentThe doctrine of judicial precedent is based off of the term stare decisis , which means, ‘stand by the decision already made’. The idea of binding precedent in the common law system is to ensure fairness in the law through consistency, to provide predictability of the law and there...

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Judicial Precedent The doctrine of judicial precedent is based off of the term stare decisis, which means, ‘stand by the decision already made’. The idea of binding precedent in the common law system is to ensure fairness in the law through consistency, to provide predictability of the law and therefore minimize the time spent in courts exploring different aspects of an already decided, similar on facts, case. This doctrine is in no way dictated by any authority but is merely a practice developed by the judiciary over the course of time. In theory, the concept of binding precedent operates such that, judges are bound to follow the decisions of higher or an equivalent courts in deciding a case on similar facts. The ratio decidendi of a judgment or the legal reasoning behind the decision is what makes a precedent binding on a subsequent court. A binding precedent remains binding on the lower courts unless it is overruled by a subsequent higher court or a parliament enacts a statutes that is contrary to what the precedent established. Since the parliament is supreme in the UK. Its enactment supersedes any judge made principle. The Other part of a judgment, obiter dicta or things said by the way also take a substantial part of any judgment. These are not binding on the courts but do hold a persuasive presence and a judge should consider, if not follow, these statements. This is clearly seen in the law on duress as a defence to a criminal charge, where the House of Lords in R v Howe (1987) ruled that duress could not be a defence to a charge of murder. In the judgment the Lords also commented, as an obiter statement, that duress would not be available as a defence to someone charged with attempted murder. When, later, in R v Gotts (1992) a defendant charged with attempted murder tried to argue that he could use the defence of duress, the obiter statement from Howe was followed as persuasive precedent by the Court of Appeal. Similar point could be made in relation to Hedley Byrne & Co Ltd v Heller & Partners Ltd, in which a leading precedent was set in the law of negligence, despite the fact that the relevant judicial reasoning was almost certainly obiter dicta. This practice as mentioned above supports the idea of fairness and consistency, and in addition saves an ample amount of time for the courts. Firstly, there are binding precedents, which are decisions of higher courts or in some cases of equivalent courts. Secondly, there are persuasive precedents, these include decisions of the judicial committee of the Privy Council, decisions of courts in other common law countries and decisions of lower courts. the supreme court in the case of Willer v Joyce, however emphasized the position of Privy council judgments as one where they can effectively overrule or declare precedents for future courts to follow, reason being that the privy council is made up of some of the most senior justices of the supreme court. There are however methods whereby judges can set aside a binding precedent to rule what seems to them as just. Judges can overrule a past precedent and set a new one, for example the Supreme Court practicing its powers of the practice statement. They can reverse back to a previous precedent. Judges can also distinguish between cases to avoid following a precedent that is unfair. Judges can distinguish between cases on their facts or the point of law involved. The doctrine of binding precedent, to understand the nature of its operation, can further be subdivided into vertical precedent (the extent to which a court binds lower courts) and horizontal

precedent (the extent to which a court binds itself). Its operation varies depending on the court in question and so shall be examined in a hierarchal order of the courts. The Supreme courts (Formerly known as the House of Lords) binds all the inferior courts in the court hierarchy. In terms of horizontal precedent the House of Lords (HOL), as it then was, took the view that they should not be bound by their own decisions. In London street tramways ltd v London county council the HOL confirmed that they would in future bind themselves with their previous decisions. This in fact was a decision bound to be changed since a strict adherence to precedents can lead to injustice and restrain the development of the law. So they did with the issue of the practice statement in 1966 providing that the HOL would no longer regard itself be bound by its previous decisions. The HOL clarified that they will use their freedom on rare occasions mainly where the previous decision seems unjust or that it is not compliant with the current social status quo. This is evident from the cases that followed. The first criminal case that was overruled came twenty years after the practice statement was issued (R v Shivpuri). In civil cases however the court was less reluctant to exercise their powers. They also overruled Addie v Dumbreck in British Railway board v Herrington. The Supreme Court has not thought it necessary to re-issue the Practice Statement as a fresh statement of practice in the Court's own name. This is because it has as much effect in this Court as it did before the Appellate Committee in the House of Lords. It was part of the established jurisprudence relating to the conduct of appeals in the House of Lords which was transferred to this Court by section 40 of the Constitutional Reform Act 2005. So the question which we must consider is not whether the Court has power to depart from the previous decisions of the House of Lords which have been referred to, but whether in the circumstances of this case it would be right for it to do so. The court of appeal in terms of vertical precedent is bound to follow its superior courts and it binds all the lower courts. This situation was challenged by Lord Denning in the case of Cassell & co ltd v Broome but was rejected by the HOL. His reasons were that the CoA handles a bulk of cases majority of which are decided finally in the CoA and so the CoA should be given the powers of the practice statement and not be bound by its own decisions. He once again objected to this situation in the case of Milliangos v George Frank Ltd but was rejected when the case went on appeal in the HOL. The basic principle of precedent in the Civil Division of the Court of Appeal is that it is bound by its own previous decisions. There are, however, several exceptions to this rule. The exceptions were set out by Lord Green MR in the case of Young v Bristol Aeroplane Co Ltd and are as follows. i.

ii.

Conflicting decisions: where the material facts of two Court of Appeal cases are similar but the decisions conflict, then a later Court can choose which case to follow. An example of the use of this rule is National Westminster Bank v Powney and Tiverton Estates Ltd v Wearwell Ltd Conflict with subsequent House of Lords/UKSC decision: where a previous decision of the Court of Appeal conflicts with a later decision by the House of Lords/

UKSC, the Court of Appeal must follow the decision of the House of Lords/UKSC, ‘implied overruling’. iii.

Decisions ‘per incuriam’: where a previous decision of the Court of Appeal was given per incuriam, which means ‘in ignorance’ or ‘without sufficient care’, a later court is not bound to follow the decision. The CoA follows the same rules in criminal cases but only wider than its civil counter-part since it’s the public good at stake in a criminal case (R v Taylor). The Divisional Courts of the High Court are bound by decisions of the Supreme Court, previous decisions of the House of Lords and the Court of Appeal. Decisions of the Divisional Courts are binding on inferior courts. The Divisional Courts are normally bound by their own previous decisions, subject to the exceptions in Young v Bristol Aeroplane. When the courts are not exercising appellate powers, they are in the same position as the High Court. The High Court is bound by the Supreme Court, previous decisions of the House of Lords, the Court of Appeal and Divisional Courts. Its decisions bind all inferior courts and tribunals. However, the High Court does not regard itself as bound by its own previous decisions, although they are regarded as highly persuasive. The Crown Court is bound by decisions of the superior courts, and its own decisions are binding on the courts below it in the hierarchy. Decisions on points of law are persuasive but not binding precedents, although inconsistent decisions can lead to uncertainty The enactment of Human rights act have lead a significant uncertainty about the operation of judicial precedent in the UK. Although The act in s2(1) specifies that the domestic courts should ‘take into account’ the jurisprudence of the European court of human rights (ECtHR). This means the UK courts are not bound to follow the ECtHR but should take into account their perspective of the law. In other words they have a choice. This choice in practice is, for the most part, dependent on the court in session and the view of the judges. However, the Supreme Court in the case of Chester confirmed that they are firmly in line with the ECtHR’s jurisprudence but only when it conflicts with the fundamental principles English law they might choose to rule otherwise. The operation of judicial precedent and a strict adherence to follow past decisions can potentially result in absurdity in the operation of the law and a wide room for criticism. The optimum method about its operation is to endorse a somewhat flexible method so the courts can work past the requirement of absolute certainty but seek the public good and promotion of justice....