Explain how the doctrine of precedents operates through the hierarchy of courts within the English legal system. How do judges avoid the strict operation of precedent? Discuss the merits and criticism of the operation of precedent.

Explain how the doctrine of precedents operates through the hierarchy of courts within the English legal system.

How do judges avoid the strict operation of precedent? Discuss the merits and criticism of the operation of precedent.

Introduction

After the Norman conquest of England local laws gave way to a general law of the country, which became known as the common law. The common law is the law applied by the courts developed through the system of precedent without reference to legislation passed by parliament. (Carl F. Stychin and Linda Mulcahy, (2007) legal methods and systems, 3rd Edition, Thompson, Sweet & Maxwell pg: 254)

What is a Precedent?

A judicial precedent is a judicial decision (in a previous case) that may be used as a standard in deciding subsequent similar cases. (Elliot & Quinn, (2009) English legal system, 10th Edition, Pearson and Longman pg: 12)

How does it work?

In making decisions the court first establishes what the facts are before applying the law to the facts. It is the application of the law to the facts that makes a precedent, and the idea that once a decision has been made on how the law applies to a set of facts similar facts in later cases at lower courts are treated in the same way following the same principle of applying the law to the facts. The above is referred to as stare decisis. Lower courts consider what part of a binding case can be characterized as the principle giving rise to the conclusion of the higher court in the leading case, otherwise referred to as the ratio decidendi (the ratio). A lower court also considers other statements of law made in the precedent which does not fall within the ratio but may affect future cases, otherwise referred to as Obiter dicta (obita). (Elliot & Quinn, (2009) English legal system, 10th Edition, Pearson and Longman pg: 13) In all precedents are set by higher courts and are binding on lower courts and are referred to as authorities.

What court decisions are binding on which court?

In the United Kingdom decisions from:

The interpretation of European law by the European Court of Justice (ECJ) are binding on all English courts, though not binding on it. An example of a binding case from the ECJ is Van duyn v Home Office (1975) 2 W.L.R.760, where a Dutch National was refused a Leave to enter the United Kingdom on the grounds that the activities of the organisation she was coming to work with were considered to be socially harmful. She took the matter to the High Court and the High Court referred the matter to the ECJ for a clarification on the EU law. The High Court abided by the ruling of the ECJ. (http://login.westlaw.co.uk/maf/wluk/app/document?&src=rl&suppsrguid=ia744dc290)

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The House of Lords (HL), apart from cases concerning European law, are binding on all other English courts on civil and criminal matters, and used to be bound by itself, but the practice statement of 1966 now allows the HL to depart from its previous decisions. This is the highest court in the United Kingdom and is now the Supreme Court of England and Wales, by virtue of the Constitutional Reform Act 2005. ( Reform Act 2005, s.23). An example of a binding case in the HL is Saif V Sydney Mitchell &Co (1980), where the House of Lords decided that the immunity extended to barristers in the work they do, does not extend to negligent advice. In future situations where barristers give wrong or negligent advice, subordinate courts will take the view that the immunity extended to barristers in the work they do, do not extend to negligent advice as found by the House of Lords. (http://login.westlaw.co.uk/maf/wluk/app/document?&src=rl&srguid=ia744dob100000...).

The Privy Council, being established by the Judicial Committee, is the final appeal court for the majority of Commonwealth Countries. (Elliot & Quinn, (2009) English Legal System, 10th Edition Pearson and Longman pg: 15) The established rule of precedent was thrown into doubt by the recent Court of Appeal judgement of R v James and Karimi (2006). The Court of Appeal held that the Privy Council could bind English Courts and effectively overrule an earlier House of Lords judgement in exceptional cases, which conflicts the custom approach to such judgements, confirmed by the House of lords in Miliangos v George Frank (Textiles) Ltd (1976), that the only judicial means by which decisions of the House can be reviewed is by itself. (Elliot & Quinn, (2009) English Legal System, 10th Edition Pearson and Longman pg: 15)

The Court of Appeal (CA) is split into two divisions and binds all lower Courts. The CA is not only bound by the House of Lords but is also usually bound by itself when it comes to Civil decisions, except in certain circumstances when a decision has been made in ignorance (per incuriam) or is conflicting with another CA or House of Lords decision. A flexible approach is applied to the use of Judicial Precedents when passing judgement in the Criminal division and does not follow them if it leads to injustice. (Elliot & Quinn, (2009) English Legal System, 10th Edition Pearson and Longman pg: 18) In R v Pagett (1983), Pagetts conviction for manslaughter was upheld by the court of appeal, on grounds that his act had caused his girlfriend’s death.

The High Court consists of the Divisional Court and the ordinary High Court and all are bound by the Court of Appeal and House of Lords. The Divisional Court (Queens Bench Division) deals with criminal appeals and judicial review and is flexible for the same reason as the Criminal Division of the CA, it also binds the ordinary High Court. On the other hand the Chancery Division and the Family Division deal with civil appeals and are bound by their previous decisions. (Elliot & Quinn, (2009) English Legal System, 10th Edition Pearson and Longman pg: 18)

Crown Courts are bound by the House of Lords, and Court of Appeal judgements and cannot set binding precedents so they are not bound by themselves, although when High Court Judges sit in the Crown Court, their judgements form persuasive precedents which are given serious consideration in successive cases. (Elliot & Quinn, (2009) English Legal System, 10th Edition Pearson and Longman pg: 18)

Magistrates and County courts are the inferior courts they cannot produce binding precedents or even persuasive ones; like the Crown Courts therefore are not bound by their own decisions. These inferior Courts are bound by the High Court, Court of Appeal and Crown Court. (Elliot & Quinn, (2009) English Legal System, 10th Edition Pearson and Longman pg: 19)

How judges avoid the strict operation of precedent

All Courts were bound by precedents up until the Practice statement of 1966 was issued, which allowed the House of Lords to depart from its precedents when it seems right to do so. (Elliot & Quinn, (2009) English Legal System, 10th Edition Pearson and Longman pg: 13) Judges can avoid the strict operation of precedents by distinguishing, overruling, and reversing; a precedent can also be avoided if it seems to have been made per incuriam (in ignorance).

By distinguishing the previous case from the current case based on the significant facts a Judge can avoid applying the precedent. (Elliot & Quinn, (2009) English Legal System, 10th Edition Pearson and Longman pg: 20)

Judges (of leading Courts) can overrule decisions made in lower Courts if it appears that the lower Court did not correctly apply the law. The power to overrule the decisions of lower Courts is used sparingly in order to maintain the respect and authority of the lower Courts. (Elliot & Quinn, (2009) English Legal System, 10th Edition, Pearson and Longman: pg 20

When reversing a precedent, the case in which the precedent concerns would have been appealed to a higher court i.e. House of Lords and Court of Appeal; these Courts would then assess the case and if the lower Court has wrongly interpreted the law the decision will then be reversed. The process of reversing a lower Courts statement of law is seen as Overruling. (Elliot & Quinn, (2009) English Legal System, 10th Edition, Pearson and Longman pg: 21)

Judges can avoid precedents which have being made carelessly (per incuriam). (Elliot & Quinn, (2009) English Legal System, 10th Edition, Pearson and Longman: pg 18)

The advantages and disadvantages of the operation of precedent

Judicial Precedents are certain, making them predictable and giving litigants the opportunity to plan accordingly. (Elliot & Quinn, (2009) English Legal System, 10th Edition Pearson and Longman: pg 30). These Precedents are detailed and practical, therefore based on a lot of real life situations to refer to, as opposed to legislation which may be based on theory and logistics. (Elliot & Quinn, (2009) English Legal System, 10th Edition Pearson and Longman: pg 31). Judicial Precedents are flexible (as seen above there are numerous ways in which to avoid precedents especially is they are ambiguous) enabling the system to adapt and make changes faster than parliament. (Elliot & Quinn, (2009) English Legal System, 10th Edition Pearson and Longman: pg 31)

Judicial Precedents can be complex when it comes to deciding what the ratio decidendi of a judgement is, particularly if there are a number of reasons. (Elliot & Quinn, (2009) English Legal System, 10th Edition Pearson and Longman: pg 31). Precedents are rigid, and lower Courts are bound by them even when they seem inappropriate, this means a bad judicial decision can last for a long time before it is presented before a court high enough to overrule it. (Elliot & Quinn, (2009) English Legal System, 10th Edition Pearson and Longman: pg 31)

The operation of precedents as can be seen above follows a system of binding cases which are set by some higher courts and are binding on lower courts. These precedents become an authority used in similar cases at the lower courts and the principles of these authorities become the bases upon which the lower courts decide other cases before them.

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