Reasonable concerns might arise as to the law becoming overtly rigid, and inept to adapt to circumstances. Like for example, society might change with time and what is good law a century ago might not be now. Further, there might be circumstances in where the law which a court is bound to apply does not in any sense produce a moral or just solution. Yet, while reasonable, that concern might just be superfluous. The reality is, the application of precedent is not a mechanical affair but a dynamic process which involves a great deal of interpretation, choice and style. The judge therefore has a lot of discretion in his decision making.
As mentioned above, courts follow the past decisions on cases with same or similar facts. However, whether the case is sufficiently similar to be applicable is a matter of interpretation.
Every precedent is decided based on a prinicple, which is called the ratio of the case. The discretion lies in the fact that extracting the ratio is a matter of interpretation in itself. To avoid an unwelcomed precedent, the judge can always distinguish it on its facts, and state another case on generality to apply it.
There is a limit to, however, what interpretation of cases can do. Sometimes, unwelcomed precedents are plain and clear, giving no room for discretion in application. For example, in the case of R v R, the issue for the court was whether under the law the defendant could rape the victim, when the victim was his wife. The law was clear, and the answer was negative. Nevertheless, even in these instances, the courts are also not fettered in their discretion. The exceptions to the rules regulating that they should follow decisions of their own and court above ar so wide ranging, that there is no way they can be hoist by their own petard. Like in R v R, the HOL, used the virtue of the Practice Statement 1966 to overrule the 200 year rule of law that husbands can never be prosecuted for raping their wives.
In view of all the discretion available to the courts, the concern swings to the other end of the pendulum. With all this discretion, how can there ever be certainty, the reason why a doctrine of precedent is needed in the first place?
One hopes that at least except for the exceptions, the courts below the HOL will follow their previous decisions and decisions from the upper tier when theres no room for distinguishing.
Yet, as Lord Denning has rightly pointed out, these “rules” of precedent are not rules at all, but practices of precedent. First off, Parliament has never legislated on this matter. Secondly, looking at the dynamics of judicial precedent logically, the courts could never have decided as a matter of law issues regarding precedents. The Practice Statement of 1966 as issued by the HOL and the cases of Young v Bristol Aeroplance and davis v johnson, is one good illustration of this. In London Trampways v LCC, the HOLs had stated that they will be bound by their own decisions from then on. In 1966, the Lords repudiated that ruling by issuing a Practice Statement while they were in Parliament, but not in court, to the effect that they can depart from their previous decision when it appears right to do so. In Davis, Lord Denning pointed out logically that the fact that the Lords could have done that shows that what was stated in London Tramways is not a rule of law but merely a guideline set by the Lords for their successors to the House. In corollary, thus he argues, what was stated by the Court of Appeal in Young v Bristol Aeroplane (see above) was similarly merely a guideline or a practice which the Court of Appeal in Davis can depart from or amend.
The HOL in Davis apparently admitted that rules of precedent are not rules but practice. However, fortuanately, the House stated that although they are just practices, having been followed and recognized by the courts turn them into some order that is binding. Their nature, is even more authoritive higher order than the rules of law. Hence, it was firmly decided in Davis, that COA is bound by their own decisions, except for the exceptions outlined in Young. The intriguing part is, the HOL while rebuking Denning for his attidude, actually affirmed the decision in Court of Appeal.
Although apparently solved, the matter arose again, albeit in a quite different manner, in R v James. By the ‘practices’ of precedent, COA are not to take Privy Council precedent as authoriatative, but merely persuasive. And in times of conflict between HOL decision and Privy decision, COA is plainly, obviously, supposed to choose HOL decision. Yet, the COA, in R v James, surprisingly opted to follow New Jersey v Holley instead of R v Smith, a HOL decision. A brief explanation of the subject manner is needed. The issue hinged on whether for the purposes of the defence of provocation in a criminal charge of murder the peculiarities which reduces the capability of the defendant to exercise self control can be attributed to the reasonable man, for the purpose of the objective test of whether areasnable person wuld have acted as the defendant did to kill the victim. In R v Smith, the HOL gave a positive answer to that question and held that Parliament had intended by s3 of the Homicide Act 1957 to give the jury full authority to decide whether the reaosnable person would have acted as the defendant did, and along with that the prerogative to decide what characteristics should attributable. Nevertheless in Holley, the Privy Council, ruled to the contrary position, had held that only age, sex and any other characteristics which affect the gravity of the provocation can be attributed to the reasonable person. The COA in R v James, in applying Holley, acknowledged that this went against the established rules of precedent. It said that this is an exceptional case, since the privy council had stated that this should clarify the law in this area and since the majority in the decision in Holley consisted of half of the Lord of the Appeals of the House of Lords it was a forgone conclusion that even if it was applied to the House of Lords, the decision would remain the same.
Yet, was it not a ‘forgone conclusion’ that the HOL would have reached a consensus with the COA in Davis v Johnson and would not Denning’s solution clarify the law in that area?
In fact in Re Spectrum Plus, the question of whether the COA was free to follow Privy Council decision instead of HOL’s has already been revisited and affirmed on. The HOL held that they were not. In light of Spectrum, de lasala, and Davis v Johnson which showed that these ‘practices’ of precedent are even tougher than rules, how could the COA have taken a different line in R v James? Does this not shed doubts on the rules of precedent again? Are they really binding practices, or merely practices which can be changed as the circumstances required?
There are various views on how the conflict can be reconciled. One view is that, the COA took a legitimate position because sitting in its criminal division accords it with more descrition than when it is sitting in its civil division. (as in R v Newsome). However, the plausibility of that argument falls for two reasons. R v Newsome is only applicable when firstly, the departure from a precedent is for the interest of the accused’s liberty, and secondly when the departure is from the coa’s own previous decision. Neither of these conditions were met, for the court’s application of Privy council authority served to uphold the appellant’s conviction for murder, whereas the HOL authority R v Smith might have resulted in these convictions being quashed.
Lord Woolf had recognised in R v Simpson that the rules of judicial precedent must provide certainty but at the same time they ‘should not be regarded as so rigid that they cannot develop in order to meet contemporary needs’. That seems exactly what Lord Denning had said in Davis v Johnson.
The position is still not fixed. A probable conclusion is when the issue goes up to the HOLs again, they would take the same stance as in Davis v Johnson. Rebuke the Court of Appeal, yet follow its decision. It seems thus, there is still very much flexibility even in the rules of precedent as regards to the hierarchy of courts. But perhaps the flexibility cannot be wielded in a manner as outright as what Lord Denning did in Davis.