Firstly, courts lower in the hierarchy can create a persuasive precedent. An example of this is R v R (1991) when the Court of Appeal found a man could be guilty of raping his wife, and the House of Lords agreed with the decision.
At the top of the hierarchy is the European Court of Justice. This court only has jurisdiction over some areas of the law, such as European Union law (which takes precedence over English law). One main feature of the European Court of Justice is that it will overrule its own decisions if it feels it is necessary. A decision made in the European Court of Justice is binding over all courts in England and Wales.
The next court in the hierarchy is the House of Lords, which is the most senior court in England and Wales. The House of Lords is not bound by it's own decisions, but it will generally follow them. All courts in England and Wales are bound by House of Lords decisions.
Next is the Court of Appeal, of which there are two divisions, the Civil Division and the Criminal Division. The two divisions must follow both the European Court of Justice and the House of Lords decisions. They must also follow their own decisions, although there are limited exceptions to this rule. In the criminal division takes a more flexible approach to its previous decisions and does not follow them where doing so could cause injustice.
Below the Divisional Courts is the High Court. The High Court has to follow all the precedents of higher courts, and it binds the lower courts. It does not have to follow it's own decisions, but it generally does so.
Below the High court is the crown court. It is bound by all the courts above it. Its decisions do not form binding precedents, thought when high court judges sit in the crown court their judgments form persuasive precedents which must be given serious consideration in successive cases. Since the crown court cannot form binding precedents it is obviously not bound by its own decisions.
Below the crown courts are the magistrates and the county courts. These are called the inferior courts. These are bound by the High Court, Court of Appeal and House of Lords. They cannot produce binding precedents or even persuasive ones, like the Crown Court they are therefore not bound by its own decisions.
There are both advantages and disadvantages with precedent. The first advantage of precedent is certainty. , it is often possible to state with certainty what a courts decision will be on a given set of facts as similar cases are treated a like.
Another important advantage is flexibility. Although certainty is offered with precedent there is also room for the law to change to meet the needs of society and case law can make changes far more quickly than parliament.
Also case law is based on real situations rather than statutes, which may be more heavily based on theory and logic. Case law shows the detailed application of the law to various circumstances, and this gives more information than statute.
The disadvantages include rigidity in law. The rule of judicial precedent means that judges should follow a binding precedent even where they think it is a bad law or inappropriate.
Also it is very complex and involves a lot of work which makes it very difficult to pinpoint appropriate principles. Most legal situations have been tested in the superior courts. This had now created around hundreds of thousands binding precedents.
Illogical distinctions also cause a lot of problems. Distinguishing by the courts to avoid past decisions can lead to a mass of cases all establishing different precedents in very similar circumstances and therefore some areas of law becoming very complex. Furthermore the advantages of certainty can be lost if too many illogical distinctions are made, and it may be impossible to work out which precedents will be applied to a new case.
B.) Creative is when judges create law (or freedom to make law) to reflect new moral values or when there is a new situation and there is no earlier decided case on the matter in hand. According to William Blackstone's declaratory theory, judges do not make law, but merely discover and declare the law that has always been.
‘Being sworn to determine, not according to his private sentiments…not according to his own private sentiments…not according to his own private judgment but according to the known laws and customs of the land: not delegated to pronounce a new law, but to maintain and expound the old one.’
Blackstone does not accept that precedent ever offers a choice between two or more interpretations of the law: where a bad decision is made, he states, the new one that reverses or overrules it is not a new law, nor a statement that the decision was bad law, but a declaration that the previous decision was not a law, in other words that it was the wrong answer. His view of presupposes that there is always one right answer, to be deduced from an objective study of precedent.
In theory the discretion of judges is controlled by precedent but in practice judges decisions may not be as neutral as Blackstone’s declaratory theory suggests.
The 1966 practice direction allows the House of Lords to change the law in later cases if it believes that the earlier case was wrongly decided. The Practice Statement is important to the House of Lords as it allows flexibility. It can give judges the opportunities to avoid following previous decisions that they feel are not suitable at present. The Practice Statement was used in British Railways Board v. Herrington (1972), where the House of Lords used it to change the law, to update it so it fitted in with today’s society. Distinguishing also allows for flexibility in the law, it is a method used by Judges to avoid following what would otherwise be a binding precedent. For this to be done, a judge will point out some difference in the facts between the previous precedent and the present case that he is trying. Since the facts are unlikely to be identical it is the simplest way for a judge to avoid an awkward precedent.
Overruling, this is where a Judge in a higher court can overrule the ratio decidendi made in a lower one. The House of Lords can overrule itself through the use of the Practice Statement 1966.
Reversing occurs when a court higher up in the hierarchy overturns the decision of a lower court on appeal in the same case. The decision of a court of appeal ruling that the judgment of a lower court was incorrect and is therefore reversed. The result is that the lower court which tried the case is instructed to dismiss the original action, retry the case or change its judgment. A judge can overrule a decision made lower in court hierarchy and also overrule past decisions made in their own court. Flexibility can be gained in a number of different ways, including distinguishing, per incuriam, overruling, this allows judges to be creative.
When deciding on a new case judges have to be very cautious in the way they use there power. If they act to explicitly they may be viewed as challenging Parliaments supremacy.
