The civil courts system consists of The European Court of Justice, House of Lords, Court of Appeal [civil division], Divisional Court of High Court [Chancery/Family], High Court and County Court.
The criminal courts system consists of House of Lords, Court of Appeal [criminal division], Divisional Court of High Court [Queens Bench Division], Crown Court and Magistrates Court.
The European Court of Justice is the highest civil court. It binds all courts within the United Kingdom; however, it does not have to follow its own previous decisions.
The House of Lords is the highest criminal court, unlike in the civil courts system. It binds all the lower courts and since the 1966 Practise Direction it no longer has to follow its own previous decisions, although in practise it usually does so.
The Court of Appeal has two divisions, the civil division and the criminal division. It binds all the lower courts and is usually bound by its own previous decisions. Within the civil division it can take advantage of any of the circumstances laid down in Young v Bristol Aeroplane where a previous decision is made in ignorance of relevant law, also known as per incuriam, there are two conflicting Court of Appeal decisions, and can therefore follow whichever they prefer, or there is a later conflicting House of Lords decision, whereby that decision has to be followed. Within the criminal division, as matters of liberty are at stake, it is allowed more flexibility and therefore if five judges sit then it does not have to follow its own previous decisions if to do so would cause injustice.
The Divisional Court of High Court contains two divisions of Chancery/Family, in the civil courts system, and the Queens Bench Division, in the criminal courts system. It binds all lower courts and within both divisions it can deviate as in the Court of Appeal, corresponding to the correct division.
The High Court, of the civil courts, and Crown Court, of the criminal courts, are not bound by their own previous decisions. The High Court can produce precedents for the lower courts, unlike the Crown Court who does not create binding precedent unless a High Court judge is sitting, and then it may be persuasive.
The County Court, of the civil courts, and Magistrates Court, of the criminal courts, are the inferior courts. They are not bound by their own previous decisions and neither can make precedent, either binding or persuasive.
The system of judicial precedent has some advantages and disadvantages. It provides an element of certainty, meaning litigants can assume like cases will be treated the same. It can respond to real situations, which are more based on theory and logic. The system is flexible, case law can make changes far more quickly that parliament can. However, there are thousands of decided cases that future cases can be based on, detracting from judicial precedents certainty. Judges could make illogical distinctions between cases, by making minute distinctions, again taking away the certainty of the system. There is dependence on chance, as important changes may not be made to the system as no new precedents can be created.
Overall the system of Judicial Precedent is a fair one. It is not rigid and can still be changed if changes are needed to keep the law up-to-date with the times.
- Discuss whether judges can be creative within the system of judicial precedent
The term creative means having the ability to bring things into existence, by creating them.
William Blackstone introduced the declaratory theory, stating that judges do not make law but discover and declare the law that has always been. Blackstone does not accept that precedent ever offers a choice between two or more interpretations of the law and where a bad decision is made he states the new one that reverses or overrules it is not a new law, nor a statement that the previous decision was bad law, but a declaration that the previous decision was ‘not law’, meaning it was the wrong answer. His view is that there is always one right answer, to be deduced from an objective study of precedent.
However, Blackstone was the eighteenth-century legal commentator, making his views inaccurate today. If Blackstone were correct a large majority of cases in the higher courts would never have gone to court. The lawyers concerned could simply look up the relevant case law and predict what the decision would be, then advise whichever of the clients would be bound to lose, and not to bother bringing or fighting the case.
In practise judges’ decisions may not be as neutral as Blackstone’s theory suggests, they have to make choices that are not spelt out by precedents. In some cases they have to avoid awkward precedents, and there are many ways in which they can do this.
Where the facts of the case before are significantly different from those of the earlier one, then the judge distinguishes the two cases and need not follow the earlier one. This is the easiest way to avoid an awkward precedent, as no case is the same as another.
Where the earlier decision was made in a lower court, the judges can overrule that earlier decision if they disagree with the lower court. The outcome of the first decision remains the same, but will not be followed. The power to overrule cases is only used sparingly as it weakens the authority and respect of the lower courts.
If the decision of a lower court is appealed to a higher one, the higher court may change it if they feel the lower court has wrongly interpreted the law. When a decision is reversed, the higher court is usually also overruling the lower court’s statement of the law, however, reversing is very different to overruling as within overruling the first decision, of the lower court, will remain the same and will not be followed.
The 1966 Practise Direction allows the House of Lords to change the law in later cases if it believes that the earlier case was wrongly decided. The House of Lords regard the use of precedent as an indispensable foundation upon which to decide what the law is and how to apply it to individual cases. It provides some degree of certainty upon which individuals can rely upon conduct of their affairs, as well as a basis for orderly development of legal rules.
In Jindal Iron and Steel Co. Ltd v Islamic Solidarity Shipping Co. Jordan Inc (2004) the House of Lords was invited to overrule itself using the Practise Direction but it declined to overturn a 1957 precedent, because it had stood for 50 years, had worked and had not produced unfair results and an enormous number of transactions had taken place assuming it was the law. This is a perfect example of judges’ creation limits.
The first major use of the Direction was in the case of British Railways Board v Herrington (1972). In this case the House of Lords overruled a previous decision that stated that occupiers do not owe a duty of care to child trespassers.
The House of Lords is reluctant to use the Practise Direction with regard to criminal cases, as it believes there is a special need for certainty in criminal cases.
These means of creation possibilities within the system of judicial precedent provide a firm, legal support to the law, adding some flexibility where it is needed.