4. However, the declaratory theory still has relevance because a decision has a retrospective effect on the law (Kleinwort Benson Ltd V City Council (1998)).
BINDING AND PERSUASIVE PRECEDENT
1. A past decision is binding if:
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The legal point involved is the same legal point in the case now being decided;
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The facts of the present case are sufficiently similar to the previous case; and
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The earlier decision was made by the court above the present court in the hierarchy, or by a court at the same level which is bound by its own past judgements; and
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The point was argued in the case (Kadhim V Brent London Borough Council (2001)).
2. Only the ratio decidendi of the earlier case is binding.
3. A persuasive precedent is one, which the court will consider and may be persuaded by, but which does not have to be followed.
4. Persuasive precedent comes from a variety of different sources.
The main ones within the English system are:
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Obiter dicta statements by a higher ranking court, e.g. the Court of Appeal following obiter dicta of the House of Lords in R V Howe (1987) when deciding the case of R v Gotts (1992) on the non-availability of duress as to a charge of attempted murder;
- Ratios from decisions by courts lower in the hierarchy.
5. Decisions by courts outside the English legal system can also have a persuasive effect on English courts. The main one of these is:
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The Judicial Committee of the Privy Council,
- The European Court of Human Rights (Human Rights Act 1998)
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Courts in other countries, especially Commonwealth countries or countries with a common law system.
LAW REPORTING
For a system of precedent to operate effectively it is essential that the reasons for decisions of past cases are properly recorded.
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The earliest law reports were the Year Books from 1282 to 1537.
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From 1537 to 1863 various private law reports were used. These varied in quality.
- Since 1864 the Incorporated Council of Law Reporting has produced the official law reports.
- There are also other well-recognised series, especially the Weekly Law Reports and the All England Law Reports.
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Since 1980 computerise la reports have been available through the LEXIS system.
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Now, judgments of the House of Lords and the Court of Appeal are Available on the Internet.
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Before the use of the Internet only about 70% of House of Lords cases were reported and less then a quarter of the Court of Appeal cases were reported. Unreported cases can only be cited in court with the permission of the court (Roberts Petroleum v Bernard Kenny Ltd (1983)).
HIERARCHY OF THE COURTS
1. a) Where appoint of European law is involved, the decisions of the European Court of Justice are binding on all courts in England and Wales.
b) The European Court of Justice does not have to follow its own past decisions. That is in accordance with the more flexible approach to precedent in European countries that have civil codes.
2. a) The House of Lords is the highest court in the UK and all other courts in England and Wales must follow its decisions.
3. a) The House of Lords will normally regard it own past decisions as binding, but will depart from them ‘when it appears right to do so’ (Practice Statement 1966).
b) The Court of Appeal has to follow decisions of the House of Lords (Broome v Cassel and Co 1971), Miliangos v George Frank (Textiles) Ltd (1976). The Court of Appeal (Civil Decision) is bound to follow past decisions of its own (young v Bristol Aeroplane Co Ltd 1944)).
c) The Court of Appeal (Criminal Division) will normally follow its own past decisions, but has flexibility to depart from a decision where the liberty of a person is involved (R v Taylor (1950)).
4. a) Divisional courts must follow House of Lords and Court of Appeal decisions.
b) Divisional courts are normally bound by their own past decisions (Huddersfield Police Authority v Watson (1947)).
5. a) The High Court must follow House of Lords, Courts of Appeal and Divisional Court decisions.
b) The High Court does not usually have to follow the past decisions of its own. However, where there are conflicting past decisions, ‘the later decision is to be preferred if it is reached after full consideration of the earlier decisions’ (Colchester Estates v Carlton Industries (1984)).
6. Inferior courts (Crown Court, County Court, Magistrates’ Court) do not create precedents and must follow decisions of all the above courts.
THE HOUSE OF LORDS AND THE
PRACTICE STATEMENT
THE NEED FOE THE PRACTICE STATEMENT
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From the middle of the 19th century the House of Lords generally regarded themselves as bound by their own past decisions (Beamish v Beamish (1861)), but is was not until London Tramways v London County Council (1898) that this rule became completely fixed.
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The reason for following their own past decisions was that it was in the public interest for they’re to be certainty in the law and to prevent the same point being re-argued.
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The ruling in London Tramways v London County Council had the effect of making the law to rigid.
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In 1966 the Lord Chancellor issued the Practice Statement giving the House of Lords flexibility to depart from past decisions. The Statement said that former decisions would normally be treated as binding, but the Lords could ‘depart from a previous decision when it appears right to do so’.
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The Statement recognised that ‘too rigid adherence to precedent may lead to an injustice in particular case and also unduly restrict the proper development of the law’.
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However. The Statement stressed the need for certainty, especially in the criminal law, and the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements had been entered into.
THE USE OF THE PRACTICE STATEMENT
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The Lords did not rush to use the Practice Statement. The first use was in Conway v Rimmer (1968), which overruled Duncan v Cammell Laird and Co (1942) on a technical point.
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the first major use was in Herrington v British Railway Board (1972), when the House o Lords overruled (or modified) the decision in Addie and Sons v Dumbreck (1929) on the liability of an occupier or premises to a child trespasser.
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However, in the same year (1872) the Lords refused to use the Practice Statement in Jones v Secretary of State for Social Services, even though 4 of the 7 judges believed the earlier case of Re Dowling (1967) to be wrongly decided.
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The first use of the Practice Statement in a criminal case was in R v Shivpuri (1986) on attempts to do the impossible.
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Since the mid 1980’s the Statement has been used a little more. For example, in civil cases it was used in:
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Murphy Brentwood District Council (1991) to overrule the decision in Anns v London Borough of Merton (1978).
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Pepper v Hart (1993) to overrule Davis v Johnson (1979) on the use of Hansard as an extrinsic aid to interpretation of status.
In criminal cases it has been used in:
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R v Howe (1987) to overrule DPP for Northern Ireland v Lynch (1975) on the availability of the defence of duress to murder charge.
- R v R (marital rape)
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R v Adomako (1994), which overruled R v Seymour (1983) on the test of recklessness in manslaughter.
6. However, there are also many example of refusal to use the Practice Statement.
