"One of the hallmarks of any good decision-making process is consistency: judicial precedent helps to ensure this." - Discuss

Until the Judicature Acts 1873-75 set up the modern court system, and the Council of Law Reporting was created in 1865, precedent was not a strict source of law. The Council produced accurate reports of cases and judgements so lawyers can now refer to earlier cases and cite them to the judge in court to back up their arguments.  These help precedent to work in practice.  The Acts provided a hierarchy showing which courts are superior. The rule is that every court binds lower courts or courts equal to them. Thus allows seeing how precedent operates within hierarchical structure.

In England and Wales, the courts have a very rigid doctrine of judicial precedent, which has the effect that every court is bound to follow any decision made by a higher court and that appellate courts are bound by their own decisions. Decisions made in the European Court of Justice bind all other courts in matter of Community law since 1973, under s3 (1) of the European Communities Act 1972 and can overrule its own decisions. Under s.2 of the Human Rights Act 1998, all courts must “take into account” the case law of the European Court of Human Rights, the Commission and the Committee of Ministers. Thus shows that if a Conventional right has been breached consistency of judicial precedent would not apply. In Re Medicaments (2001) the Court of Appeal refused to follow a decision of the House of Lords in R v Gough (1996) because it was different to decisions of the ECHR.

 The House of Lords bind all lower courts, especially Court of Appeal, and, since 1966 when it issued a practise statement, can overrule past decisions. This is clearly seen in Directors for Northern Ireland v Lynch when the House of Lords said that duress could be a defence to a charge of murder, and in R v Howe they said it could not. The declaration that the House of Lords was no longer bound by it’s own decision helps to strengthen the idea of precedent in English law, as before that decisions had to be followed even though they were unfair or outdated.

 The Court of Appeal has two divisions, which are both bound by the higher courts but not each other. Each single division is bound by its own previous decisions; however, both have the Young v Bristol Aeroplane exceptions. In Young v Bristol Aeroplane Co Ltd, the Court of Appeal (civil division) held to be bound by its own previous decisions and also ruled to be a subject to three exceptions. Firstly, where there are two conflicting decisions, the Court of Appeal must decide which to follow and which to reject. Secondly, where a decision of its own has been impliedly overruled by the House of Lords. Finally, the CA divisions are not bound where the previous decision was given per incuriam, which means ‘by carelessness or mistake’. In the criminal division, in addition to the Young exceptions, precedent is not followed as rigidly because a person's liberty may be at stake. In R v Taylor the Court of Appeal held that if ‘the law has either been misapplied or misunderstood’ then it must reconsider the earlier decision. Divisional Courts are bound by higher courts and bind lower courts except the Employment Appeal Tribunal. They are generally binding on themselves. Higher courts bind the High Court, but not themselves, and all courts bind Inferior Courts.  From the courts structure it is clearly seen that consistency is not ideal there as certain exceptions have to be applied and also courts have to take into consideration the Human Rights Act and European Court of   Justice.

To further understand the doctrine of binding precedent it must also be noted that there are potentially two elements of law within a precedent. It is not the decision in a case, which is binding, but rather the rule of law on which the decision was based on. This element is known as the ratio decidendi. A decision of a court will usually contains numerous elements: finding of material facts, statements of the rule of law applicable to the legal problem, and a judgement based on the combined effects of the first two. It is the statement of the rule of law in a case, which becomes the ratio decidendi. Thus the ratio decidendi may be described as the statement of the principles of law applied to the legal problems raised by the facts as found upon which the decision is made. This in turn leads to another crucial distinction. Not every statement of law in a judgement is binding. Only a statement, which is based upon the facts as found and upon which the decision is based will be binding. Any other statement of law is, strictly, surplus and is described as obiter dictum. A statement of law is regarded as obiter dictum if it is based on facts which either were not found to exist, or, if found, were not found to be material. On the other hand, there is a possibility for dictum to form a precedent. A good example of a highly influential dictum is the statement of Lord Atkin in Donoghue v Stevenson where he attempted to lay down a general test for determining when a duty of care arises in the tort of negligence. His dictum has become known as the 'neighbour test' and was expressed in these words:

"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be—persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."

This dictum, though clearly obiter, has been adopted in subsequent cases, for example The Dorset Yacht case. Another example where obiter dicta have formed law is in the case of Central London Property Trust Ltd. V High Trees House Ltd and Pinnel’s Case.

Judicial precedent has numerous advantages. The operation of judicial precedent allows for development of the law.  But the basic purpose of the rule of law is to provide consistency and certainty. Precedent brings consistency to the English legal system, in that two cases with similar material facts will be treated in the same manner. No legal system can be perceived as fair unless everyone receives equal treatment. Predictability allows lawyers to advice their clients with some degree of certainty. Certainty is an important advantage of the existence of precedent. A judge may be prevented from making a mistake, which he or she might have made if there were not any guidance available.

Another initial advantage of precedent is its convenient timesaving device. If a problem has already arisen and been solved in a certain way it is easy to reach the same conclusion without too much reconsideration. However some may feel that treating two cases alike doesn't allow for much freedom and rigidity is formed, inhibiting the development of the law and, therefore giving the impression that the law of precedent is strict and inflexible. But there are various ways in which a judge may avoid following a previous decision. A judge may be able to distinguish an earlier case from the present case on its facts and, thus avoid following it. No two cases will ever be identical in every way. The cases of Jordan and Smith illustrate a 'real life' example of distinguishing two separate cases from one another. They may seem at first to be alike in many ways, but when the facts are investigated fully, it becomes obvious that they are actually different. This indicates that separate precedents would need to be used. A judge could avoid using a precedent because he or she found the ratio too obscure or the previous decision was per incuriam i.e. ‘by mistake and without all the facts’. Reversing occurs where a court higher up in the hierarchy overturns the decision of a lower court on appeal in the same case. As it was mentioned before the House of Lords has since 1966 indicated that it is actually prepared not follow its previous decisions if they feel that injustice will occur or there will be unreasonable restriction of the development of the law. The court will choose which decision to follow if there are two conflicting decisions and will not follow one of its own decisions if it is inconsistent with a decision of the House of Lords or the Privacy. The case of Miliangos v George Frank (Textiles) Ltd shows that a judge can actually avoid using a precedent it can be seen that the law of precedent isn't as strict and inflexible as the title and some people’s opinions may suggest. However some judges, particularly in the House of Lords, have been, at times, and to a certain extent still are - holding decisions to be wrong, but not refusing to overrule them. They are very strict in their adherence to stare decisis. Judges do not care whether a decision is 'right' or 'wrong', just or unjust. This can be seen as a big disadvantage, from one side, as it means that judges have too much power at times and a bad precedent can be ignored which would make the law strict and inflexible. Once a court, high enough in the hierarchy has established a principle, it is very difficult to remove or alter that principle. On the other hand, the overruling of an earlier case may cause injustice to those who have ordered their affairs in reliance on it. Precedent may produce justice in the individual case but injustice in the majority of cases. It would be undesirable to treat a number of claimants unjustly simply because one binding case had laid down an unjust rule.

Changes in society can also show that the doctrine of judicial precedent can be very resistant to satisfy the needs of society. Thus, the principle once been appropriate may have become very unsuitable in the modern society. For example, the courts in the case of Priestly v Fowler had developed a doctrine of ‘common employment’. This meant that when “an injury to one servant was caused by another servant of the same master, the master would not be liable in damages to the injured servant, although the other servant would be”. The doctrine relevant in the condition of the domestic employment hundred years ago, when the number of servants was not great in contrast with modern factory employment, where the number could reach thousands employees. Because of the doctrine ‘common employment’ it took 61 years to modify the law of employment on this issue. In the case of Groves v Wimborne it was held the principle was inapplicable if there was a breach of statutory duty by the employer. There is another example; the case of R v R which is about the possibility of the rape within marriage has been recently decided given its long history. In R v R the House of Lords held that a person could be guilty of raping his wife, previously it could not be rape because it was assumed that a wife consented.  As this was the first time the law had been decided this way it set a new precedent for the future.  The decision was appealed but both the Court of Appeal and the House of Lords agreed so it is binding on all courts.  From these examples it is clearly seen that the principles cannot be regarded as rigid as some people might think and that they can develop in order to meet contemporary needs. One of the earliest statements on the justification of this doctrine was made by Parke J in Mirehouse v Rennell (1833)) when he stated: 

"Our common-law system consists in the applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedent; and for the sake of attaining uniformity, consistency and certainty, we must apply those rules, where they are not plainly unreasonable and inconvenient, to all cases which arise; and we are not at liberty to reject them, and to abandon all analogy to them, in those to which they have not been judicially applied, because we think that the rules are not as convenient and reasonable as we ourselves could have devised."

 It was emphasised by the Court of Appeal in R v Simpson. The doctrine does, however, retain some element of flexibility, and this is best described by two principles: first, that superior courts have power to overrule decisions of inferior courts and, in certain cases, to overrule their own earlier decisions, as it was mentioned before when the courts hierarchy had been considered, and secondly, that any rule of law may be changed by statute.

 In any event, flexibility, certainty and consistency are incompatible features of judge-made law. In Search of Justice it has been noted that ‘the more predictable the law attempts to become the less it can be adjusted to changing circumstances’. A system that was truly flexible could not at the same time be certain because no one can predict when and how legal development will take place. It is actually up to individual judges; they could protect stability or keep law ‘abreast with changing times’A further disadvantage that has to be considered is unconstitutionality. It concerns with the fact that judiciary make law rather than restricting themselves to the role simply applying it.

The old view of the judges' role, the so-called declaratory theory of law, was that they were merely 'declaring' the existing law. Lord Esher stated in Willis v Baddeley:

"There is … no such thing as judge-made law, the judges do not make the law, though they frequently have to apply existing law to circumstances as to which it has not previously been authoritatively laid down that such law is applicable."

The modern view is that judges do make law. Lord Radcliffe said:

"… there was never a more sterile controversy than that upon the question whether a judge makes law. Of course he does. How can he help it?"

The reality is that judges are continually applying the existing rules to new fact situations and thus creating new laws. Law must adapt to changing circumstances and Parliament can be slow. Therefore, from any disadvantage you could always derive some positive elements. The making of law in decided cases offers opportunities for growth and legal development, which could not be provided by Parliament. The courts can more quickly lay down new principles, as the judges from time to time have to deal with ‘cases of first impression’ or extend old principles, to meet novel circumstances. If a new event that has not been decided before comes to the court (original precedent), it is likely that the judge will look at cases which are close in principle and decide to use similar rules. This idea of creating new law by analogy can be seen in Hunter v Canary Wharf. The interference with the reception on Hunter’s television because of Canary Wharf Tower having been built was likened to the case of Bland v Molselely, in respect to the loss of a view.  There has built up over the centuries a large quantity of cases that illustrate a vast number of the principles of English law. The cases exemplify the law in the sort of detail that could not be achieved in a long code of the Continental type. However, therein lies another weakness of case law. Its very bulk and complexity make it increasingly difficult to find the law. Moreover, the advantage of certainty is diminished, as there are too many cases that seem really confusing.

It is fair to say that judicial precedent has considerable significance within the laws of England, however it is important to see whether the significance is justified, and whether it is current position is adequate. Consistency plays a central role in justifying the decisions taken in particular case. Some believe that treating two cases in the same way can lead to the law being inflexible and rigid and a lack of freedom is formed. This to a certain extent is true but I feel that if two cases are very alike with just material facts being different, then they should be treated in the same way. This leads to fairness and certainty as mentioned previously.  However, there are a lot of factors, which make it difficult to achieve consistency, ‘as statements of law on a legal issue are usually made by more than one judge and a single judge make several stamens of law’. Practically any legal system has official hierarchies of decision-making, where superior courts have the power to resolve inconsistent statements of lower court judges. Therefore, there is a degree of inconsistency where the decisions delivered by different judges on certain points of law. ‘In any cases, the rules of precedent do not explain why judges obey the rules of precedent. Neither do they indicate the degree of consistency that is likely to be precedent at any given time’.

 On the whole the advantages are outweigh the disadvantages and it the best system we have at the moment and still remains highly significant in English legal system. The Practice Direction of 1966 allows the Highest Court in the hierarchy to reverse previous decisions that helps to ensure that old and out dated rules can no longer apply to modern society. Due to the increase of case law the importance of judicial precedent will increase, as it will cover nearly every legal situation. It cannot be achieved by any codified legal system. Even though a part of British constitution has now been codified in statutes it only brings advantages. It can be referred to and it will be easy to see when someone breaches these rights. Before the Human Rights Act was made, citizens had nothing to back them up when they felt their rights as a citizen had been infringed apart from taking the case to the European Court in Strasbourg. Now, there are many different cases that allow citizens to do things they were never previously lawfully allowed to do. The Human Rights law is now entrenched in the UK Judicial system, and so it will be much more difficult to repeal an entrenched Act of Rights when there is a breach of basic human rights. It will be actionable directly in the UK courts.

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