In 1966 the Lord Chancellor issued a Practice Statement announcing a change to this rule. The Practice Statement allows the House of Lords to change the law in later cases if they believe that the earlier case was wrongly decided. However, the House of Lords has been reluctant to use this power since many judges feel that certainty in law is essential.
The first case The Practice Statement was used was Conway v Rimmer (1968), but this only involved a technical point on discovery of documents. However, the first major use of the Statement did not occur until 1972. In British Railways Board v Herrington, which involved the law on the duty of care owed to a child trespasser, the House of Lords overruled its own 1929 decision which said that no such duty was owed. In Miliangos v George Frank Ltd (1976) the House of Lords used the Practice Statement again, this time to overrule the previous judgment that damages could only be awarded in sterling.
The Practice Statement stressed that criminal law needs to be certain so it was not surprising that the House did not rush to overrule any judgments in criminal cases. The first use in a criminal case came about in 1986, in the case of R v Shivpuri, which effectively overruled the decision in Anderton v Ryan (1985) on attempts to do the impossible.
The next court in the hierarchy is the Court of Appeal (CA), which has two divisions: Civil, and Criminal. The rules of precedent are not quite the same in the two said divisions.
The first rule is that both divisions of the Court of Appeal are bound by the decisions of the ECJ and the House of Lords. This is true even though there have been attempts in the past to argue that the Court of Appeal should not be bound by the House of Lords. Lord Denning refused to follow earlier House of Lords decisions in Broome v Cassell (1971) and again in the case of Miliangos v George Frank (1976). The House of Lords however, pointed out that the Court of Appeal had no right to ignore or overrule the decisions of the House. The main argument in favor of the Court of Appeal being able to ignore House of Lords decisions is that very few cases actually reach the House, so that if there is an error in the law it may take years before the suitable case is appealed all the way up to the House, for the error to be substantially corrected.
The second rule is that the Court of Appeal is bound by its own previous decisions with some small exceptions which were set out in the case of Young v Bristol Aeroplane Co. Ltd (1944) and the only exceptions allowed by the case are:
- where there are conflicting decisions in past Court of Appeal cases, the court can choose which one it will follow and which it will reject.
- where there is a decision of the House of Lords which effectively overrules a Court of Appeal decision the CA must follow the decision of the House of Lords
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where the decision was made per incuriam, that is carelessly or by mistake.
The Criminal Division of the Court of Appeal can also refuse to follow a past decision of its own, if the law has been ‘misapplied or misunderstood.’ This extra exception arises because in criminal cases people’s liberty is involved (R v Gould (1968)). The Civil Division, under Lord Denning tried to challenge the rule in Young’s case claiming that the rule to be bound by it’s own decisions, was a self-imposed limitation, and that as the Court of Appeal had imposed it, it could also remove it. However, in Davis v Johnson (1976) when the Court of Appeal refused to follow a decision made only days earlier, regarding the interpretation of the Domestic Violence Act 1976, the case went to the House of Lords on appeal. There, the Law Lords ruled that the Court of Appeal had to follow it’s own previous decisions and said that they ‘expressly, unequivocally, and unanimously reaffirmed the rule in Young v Bristol Aeroplane.’ The disadvantage however, of this system is the length of time it may take a case to reach the House of Lords; in fact, it may never each there, since the House hears only about 100 appeals each year. The Court of Appeal hears roughly 8,000 appeals annually, and that is why, sometimes the Court of Appeal judges become frustrated with the system that allows bad law to remain in the system, without recourse. Although not every court in the system should be able to ignore precedent, there has always been a strong argument that the Court of Appeal should have more freedom.
Below the Court of Appeal is the Divisional Courts, which are bound by all courts above them in the hierarchy, as well as their own past decisions. The High Court is bound by decisions of all the courts above it, and in turn binds all courts below it in the court hierarchy. High Court judges do not have to follow each other’s judgments, but will usually do so.
Having discussed the usage and applicability of precedent, the question does arise, why use precedent in the first place? This is illustrated by the discussion of some of the advantages of following precedent:
- Certainty – following past decisions allows people to know what the law is and how it is likely to be applied in their case; it also means lawyers can advise their clients.
- Consistency and Fairness – it is seen as just and fair that similar cases be decided in a similar way.
- Precision – since each principle of law is set out in an actual case, the law becomes very precise.
- Flexibility – there is room for the law to change with the use of the Practice Statement and the discretionary device of Distinguishing.
However, precedent does bring with it a number of disadvantages, which does require a mention:
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Complexity - since there are nearly half a million reported cases it is not always easy to find all the relevant case laws even with computerized databases; further, the judgments are often very long, and it is difficult to extract the ratio decidendi.
- Rigidity – because lower courts have to follow the decisions of higher courts and the Court of Appeal has to follow its own past decisions, the law can be too inflexible and bad decisions made in the past may be perpetuated.
- Illogical Distinctions – the use of distinguishing to avoid past decisions can lead to ‘hair-splitting’ and some areas of law have become very complex because of this.
- Slowness of Growth – it is necessary to wait for the suitable cases to come before the courts, in order to rectify or change the areas of the law that are known to be in need of reform.
A handful of devices are available to judges by which precedent can be overridden. One such device is Distinguishing. It means that if the judge finds that the material facts of the case he is deciding are sufficiently different for him to draw a distinction between the present case and the previous precedent; he may depart from the precedent in order to uphold fairness. Two cases demonstrating this process are Balfour v Balfour (1919) and Merritt v Merritt (1971). Both cases involved the wives claiming against their husbands for breach of contract. In the earlier case it was decided that the claim could not succeed because there was no intention to create legal relations; it was as the court held, merely a domestic arrangement between the wife and the husband. The second case was successfully distinguished because the court held that the material facts of the two cases were sufficiently different in that although the parties were married, they were separated when they made the agreement, and it was made in writing. It was therefore not just a domestic arrangement but was a legally enforceable contract.
Precedent can be overridden by Overruling as well, where a court in a later case states that the legal rule decided in an earlier case is wrong. Overruling can only occur when:
- a higher court in the hierarchy overrules a decision made by a lower court
- the ECJ overrules a past decision it has made
- the House of Lords uses it’s power under the Practice Statement to overrule a past decision
In the case of Re Spectrum Plus Ltd (2005) the House of Lords has pronounced on the powers of judges while deciding a cases. A seven-judge Appellate Committee considered whether the House of Lords might have the power to make “prospective” rulings on matters of common law or statutory interpretation, having effect in the future but not altering the law retroactively. Having heard submissions on behalf of the Attorney General as well as the parties, their Lordships agreed that the instant case was not one in which such a ruling should be made, but said there might be exceptional circumstances in which it would be permissible and appropriate. This has had the implication that if cases of say, financial transactions are given a retrospective effect, then it would open the floodgates to all the people governed by the previous law, who would now claim compensation, or remedies pertaining to their claim. As Lord Nicholls put it, however, a court ruling which changes the law from what it was previously thought to be operates retrospectively as well as prospectively. The ruling will have a retrospective effect so far as the parties to the particular dispute are concerned. Because of the doctrine of precedent the rights and obligations of everyone else whose case thereafter came before a court would be decided according to the law as enunciated by court even though the relevant events occurred before that decision was given. (as was the case in Donoghue v Stevenson (1932).
The third device is known as Reversing, and occurs when a court higher up in the hierarchy overturns, or reverses a decision of a lower court, in the same case.
The most striking development pertaining to precedent came in the case of Holley in June 2005. In A-G for Jersey v Holley (2005) the Privy Council, unusually sat as a Board of nine judges, to settle the conflict between the Privy Council’s own decision in Luc Thiet Thuan (1997) with the House of Lords decision in R v Smith (Morgan). The issue before the court was whether the defendant’s alcoholism was relevant to the standard of self-control to be expected of him under section 3 of the Homicide Act 1957. The Privy Council held by a majority that it was not a matter to be taken into account whether a person with ordinary self-control would have done what the defendant did. The Board referred to the substantial difference of judicial opinion in Smith (Morgan) and came to the conclusion that the majority opinion in Smith (Morgan) was not an accurate statement of English law. Later, in R v James, and R v Karimi, the Court of Appeal quite miraculously chose to follow Holley, instead of Smith (Morgan). This had in fact changed the entire concept of judicial precedent, and the hierarchical structure of the UK courts. It appears that Privy Council has effectively overruled the decision of the House of Lords through Holley. This definitely begs the question; can the English courts lower in the hierarchy exercise the same discretion to override precedent, as was done in Holley? The answer is a resounding, ‘no’. As was said by the Law Lords, the majority judgment in Holley should not be taken as an indication that lower courts can overrule the House of Lords. Holley was merely an instrument by which the Law Lords had corrected an error they themselves had made in Smith (Morgan).
Precedent has had a remarkable role in the development of law in the UK. Judges have used precedent to create new laws and to extend old principles. In the law of negligence, most of the development has been as a result of judicial decisions, starting with Donoghue v Stevenson (1932), continuing with cases on liability of nervous shock (McLoughlin v O’Brian (1982), Alcock v Chief Constable for South Yorkshire Police (1991)), and cases on liability for economic loss (Hedley Byrne & Co. Ltd v Heller and Partners Ltd. (1964), Caparo Industries plc v Dickman (1990)). In criminal law the judges have effectively created new offences as in Shaw v DPP (1962) creating an offence of ‘conspiracy to corrupt public morals’ and R v R (1991) deciding that a husband could be guilty of raping his wife.