Principally, there is no real difference between the civil and criminal divisions of the Court of Appeal when applying stare decisis, although both divisions within the Court of Appeal are bound by the House of Lords, however, when this is put into practise, the precedent is considered not to be followed as rigidly in the criminal contingency.
Further down the hierarchy of the courts, is the High Court, which, since it is below, both the House of Lords and the Court of Appeal, is subsequently, bound by both of them. Decisions, which are made in this court, however, are binding on County Courts, Crown Courts and Magistrates’ Courts. Decisions made in Crown Courts by the judges sitting there are not binding, however, are considered to be of persuasive influence, consequently, there is no requirement for other Crown Court judges to adhere to them. In the case of the rest of the ‘inferior courts’, the outcomes there are not I anyway binding, and seldom regarded as anywhere near important within law, subsequently meaning that, they never usually find themselves being reported.
As the essay title implies, judges have made decisions over the years, contrary to the stare decisis tenet. So what we now have to consider is how the judges managed to avoid the precedents.
Firstly, the judge must decide if the case he is in charge of has the same legal principle and the facts of his case are similar to that of a binding precedent. It is considered that the reason that judges distinguish the facts is to avoid any possible consequences that could arise as a result of a former awkward decision, which would happen to be binding, on that judge’s case. As it the judge who looks at the facts, some judges may ‘distinguish’ unpopular establishments, and have, what may be seen as a biased view. In Jones v Secretary of State for Social Services [1972] AC 944, Lord Reid stated:
"It is notorious that where an existing decision is disapproved but cannot be overruled courts tend to distinguish it on inadequate grounds. I do not think that they act wrongly in so doing, they are adopting the less bad of the only alternatives open to them. But this is bound to lead to uncertainty …"
A second way that judges may avoid precedent is to overrule a decision, made by a lower court, which is obviously an earlier case. An example of this may be, the House of Lords can overrule a decision made by any of the courts below it in the hierarchy system of the courts. When this type of avoiding usually occurs is when application of the law was not correct, or alternatively, if the later court decides that the rule of law of the ratio decidendi in the earlier case is not as pleasing or appropriate, as it was. An example of the second of these ways happened in the case of Miliangos v George Frank (Textiles) Ltd. [1975] 3 All ER 801.
In that case, after undertaking a historical review of the rule regarding rendering judgments in foreign currency, and after examining the judgment of the Court of Appeal in Schorsch Meier GmbH v Hennin [1975] 1 All ER 152, in which the Court of Appeal had not followed the decision of the House of Lords on the point, Lord Wilberforce stated “a new and more satisfactory rule”, holding that,
“To change the rule would … avoid injustice in the present case. To
change it would enable the law to keep in step with commercial needs and
with the majority of other countries facing similar problems.”
However some judges, particularly in the Lords, have been, at times, and to an extent still are – holding decisions to be wrong, but not refusing to overrule them. They are sometimes, also, very strict in their loyalty to stare decisis, id est, they do not care whether a decision is ‘right’ or ‘wrong’, just or unjust. This can be seen as a huge disadvantage as it means to say that the judiciary has too much authority at times and a dire precedent can be ignored which would make the law authoritarian and often rigid at times.
In addition, if a party is unhappy with a previous decision made, they can appeal, if they can afford the costs. When this occurs, the party requiring the appeal, approach a higher court. The higher court will then look at the original case and apply its own decision, which may remain the same as the original decision, change the outcome completely, or alter the outcome slightly.
Finally, a decision which is said to have been reached in error (per incuriam), is perceived to have been concluded as a result of a mistake or carelessness, on the part of the judge. In the case in 1955, (Morelle v Wakeling [1955] 2 QB 379) Lord Evershed MR stated that "the only case in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned".
As there are a vast amount of court cases going on nearly every day of the week, there are a lot of cases which may result in new binding cases coming to fruition. Some, may only alter previous precedents slightly, however, some, such as, in 1991, in the case R v. R case, the House of Lords entirely eradicated a husband’s exemption from criminal accountability for raping his spouse, something which had stood for 250 years. Their basis to abolish this ruling was that due to the changes that have occurred in society, id est, socially, culturally and economically, in terms of they have developed quite substantially, and so this governed them to “evolve”, as they put it, the law on marital rape.
In all honesty, there are times when there can be advantages and disadvantages within the doctrine of precedent, a very clear example of such an advantage being that, there should be seen to be certainty in the law. As mentioned earlier, if you commit a crime, and you have knowledge of the law, you should be able to work out what the result would be of the court case, should it arise. In addition to the example given above, there are several others, another of which shall be mentioned being, judicial precedent is meticulous, which offers a plethora of cases to which a judge could choose to refer, however, on the other hand, there is far too much case law and it is multifaceted, as well as the fact a result could perhaps take a considerable time to be published as there are a lot of factors which would have to be discussed and uncovered, before a possible judgement could be made.
Many people will argue the fact that judges over the years, to quite a great extent have managed to change precedent quite substantially, and a lot of decisions have influenced this, as the judges attempt to apply the law to our society today. Considering the measures which are in place to prevent them from doing so, there are cases such as the Marital Rape case in 1991, which was clearly outdated and a decision to change the law was undoubtedly necessary, in the eyes of a lot of people. However, a lot of people would disagree with that fact, due to the fact that, they see it that judges can technically “make it up as they go along”, and subsequently maintain that law should be untouched, and left as it is, despite that some laws, such as the afore mentioned on marital rape, were far outdated, being a quarter of a century old. However, in the interests of society as a whole, it would be beneficial to have these developments in the law, to ensure that the law with which we abide by, really does apply to us in the ever evolving twenty-first century.
