The Latin term for this is stare decisis which is translated as ‘let the decision stand.’ On first appearance it may appear that the doctrine of precedent means that common law will almost never change. Sometimes cases arise that are so unusual that there is ‘little or nothing in the way of case law.’ (AQA law in Focus) So judges find ways to avoid applying an existing precedent. Judges generally have to choose “which of a number of precedents apply to the current case.”(AQA Law In focus)Earlier cases that are similar but are crucially different need to be distinguished from valid precedents. Higher Courts may overrule or reverse the decision of lower courts. If overruling is possible it then depends upon the position of the court within the hierarchy.
I am now going to discuss each stage of the hierarchy of the courts and how they contribute to the doctrine of precedent.
Top of the civil court hierarchy is the European Court of Justice (ECJ). The next is the House of Lords and then the Magistrates Court at the bottom. Top of the criminal is the House of Lords, with the Court of Appeal Criminal Division on the next tier and finally the Magistrates Court.
The hierarchy of the courts is very important “because lower courts are bound to follow the precedents set by the ECJ.”(AQA Law in Focus) for example all courts must follow the ECJ because it is at the top. Lower courts have no choice but to follow precedents set by higher courts. Precedents set by higher courts are known as ‘binding precedents.’
Lower courts can make precedents but a precedent from a lower court can be overruled or reversed by one of the higher courts at a later date.
- Discuss the advantages of the system of president. (10 marks)
I am now going to discuss each stage of the hierarchy of the courts and how they contribute to the doctrine of precedent.
The European Court of Justice (ECJ)
“The ECJ is a court that derives its authority from the member states of the European Union not just from English law.”(AQA Law in Focus) The UK is a member or the EU and so decisions of the ECJ are binding on all UK courts. However some areas of law like criminal law are unaffected by European law. In these areas the House of Lords is supreme. The ECJ however is a lot more flexible about overruling its past decisions than the House of Lords.
House of Lords
There has been a very controversial debate amongst the judiciary and the legal academics for some years regarding the extent to which the House of Lords should see itself as bound by its own decisions. The House of Lords is the highest court of appeal in the domestic UK system. The House of Lords has a choice between certainty and flexibility in the law.
Many argue that the House of Lords have crated ‘regrettable uncertainty in the law.’ It may be argued that lawyers will find it hard to see what the common law is at any one time because major precedents are being made on the basis of the views of a particular court. The strict rules of precedent help to prevent uncertainty because lawyers know what the precedent are they can usually predict how a judge may see the law.
However on the other hand if the House of lords is bound by its own past decisions the law may not progress fast enough. Some may argue that what was seen as morally correct or wrong in the 19th century would not bee seen the same way in society today. However because of the Doctrine of precedent there have been occasions when the principles remain within common law. An example is the case R v R (1991) this is an extreme example of the potential danger of sticking to precedent. In this case the House of Lords argues that contrary to its earlier decisions rape could be a crime within marriage. Before this case a line of precedents stated that a married woman could not refuse sex with her husband. Most would agree with the House of Lords decisions to change the law however it is quite worrying that it was not changed before 1991.
In 1996 the House of Lords issued a ‘Practice statement’ that indicated the willingness to be a little more flexibility in the future. The Common law system of precedent has not changed a lot since 1966. There have only been a few cases where the Practice statement has been used.
Court of Appeal
In both divisions of the Court of Appeal earlier decisions are normally binding. This is the rule created by Young v Bristol Aeroplane Ld. (1944) there are three exceptions allowed by that case:
- Where there are conflicting Court of Appeal decisions.
- Where there is a House of Lords decision which can be interpreted as overruling the Court of Appeal decision by implication.
- Where the earlier Court of Appeal decision was given per incuriam.
For many years in the 1960’s and 70’s the Court of Appeal and Lord Denning sought in various judgments to overthrow restriction Young v Bristol Aeroplane(1944) Ltd creates.
The ratio decidendi of a case “is the statement of what law is in relation to the particular facts at hand.”(AQA law in Focus) This principle is central to a judgment. Other things said by the judge are known as obiter dicta.
Rupert Cross described ration decidendi as ‘any rule expressly or impliedly treated by the judge as a necessary step in reaching his decision.’ In future cases where the facts are basically similar ratio decidendi that binds a judge. The obiter dictum however does not bind future judges although they are heavily influenced by it.
Obiter dicta statements often turn out to be influential in the evolution of the law and should not be regarded as insignificant just because the ratio binds the courts.
Judges considerations make them cautious about changing the existing law dramatically. Judges take into account these considerations:
- The need for certainty in the law
If the courts stay treating cases that are similar in the same way, this is helpful to people who need to plan their affairs in light of the current affairs.
- The Role of Parliament
When courts have the opportunity the make laws, they normally hand it over to Parliament on the basis that this is a matter for parliament as a democratically elected body.
- Policy Arguments
