The doctrine of precedent has existed for quite a while, but it was not until 1865 when the Council for Law Reporting was established and modern reports were published, that it became fully functional. Before that, law reporting was rather unreliable and resulted in the application of the doctrine of precedent being impractical. The settled hierarchy of the courts since 1876 has also further enabled the doctrine of precedent to be more precisely executed. Since then, judges are said to be very much bound to follow precedents.
By virtue of section 3 of the European Communities Act 1972 and section 2 of the Human Rights Act 1998, the rulings of the Court of Justice of the European Communities are binding on all European Courts including the House of Lords as well as the other inferior courts in the UK, but not upon itself. Whereas the decisions of the Privy Council and the decisions of courts in Scotland, Australia, the US and other countries are not binding on the English courts but they are of strong persuasive authority such as the Wagon Mound case. However, the decisions of the Privy Council are of binding authority in the country from which the appeal came and possibly, even in other countries.
In the UK, the higher the courts are in the hierarchy, the more the discretion the judges in the courts could exercise. This is because precedents set by courts with a higher status in the hierarchy are binding upon those below whilst the decisions from the lower courts can only amount to persuasive authority to its superior courts.
The House of Lords’ decisions used to bind itself as well until July 1966 when Lord Gardiner, the Lord Chancellor made a statement on behalf of himself and his peers. The 1966 Practice Statement allows the House of Lords to depart from its own previous decisions. Previously, the doctrine of precedent was deemed to be binding regardless of whether it created injustice such as in the case Beamish v. Beamish where the precedent, R v. Millis had to be followed. Even though at times the Law Lords of the highest court of the land were very reluctant, they did not have the discretion to do otherwise. The Practice Statement established the House of Lords to have the discretion to be bound by its own precedent and since then, the House of Lords has used this power sparingly on rare and exceptional cases. Only a 28% out of all the cases which the House of Lords was invited to depart from their previous decisions were entertained such as in the cases of Herrington v. British Railways Board [1972] over Addie & Sons v. Dumbreck[1929] and in R. v. Howe [1987] over Director of Public Prosecutions for Northern Ireland v. Lynch [1975].
The Court of Appeal, however, though tried to overrule the precedents of the House of Lords in Morris v. Crown Office [1970] and later in Miliangos v. George Frank Ltd is still bound by the precedents set by the House of Lords. The Civil Division of the Court of Appeal is generally bound by its own decisions.
This has been criticized by the former Master of the Rolls, Lord Denning in Davis v. Johnson [1979] as well as numerous other occasions. Lord Denning has claimed that judges in the Court of Appeal should be given the discretion as possessed by those of the House of Lords as it shall be more time consuming, a waste of resources and most important of all, utterly unfair to the appellants and even the public at large should the judges in the Court of Appeal lack the discretion to depart from previous precedents even when those decisions are clearly in the wrong. However, his views were unsupported by Lord Diplock as well as the other Law Lords in the Court of Appeal and though Lord Denning’s efforts were amiable, he did not succeed.
So, the Court of Appeal is generally still bound by its own previous decisions but is subjected to the three exceptions as led down by the case of Young v. Bristol Aeroplane. This includes situations where its own previous decisions conflict. The judges would then have the discretion to follow the
precedent which they feel is more preferably and less likely to result in injustices. Also, the judges would have the choice to not follow a previous precedent of the Court of Appeal and choose instead to follow a conflicting precedent as provided by the House of Lords should such an occasion surface. Lastly, it was decided that the judges could depart from an otherwise binding precedent on the grounds that the previous decision was made per incuriam.
Yet, in the case of R v. Simpson (2003), the Court of Appeal claims that it retains some discretion to depart from a previous decision that it considers to be wrong, particularly where there is a full Court of five judges sitting.
On the other hand, the doctrine of precedent is not followed as rigidly in the criminal division. This is due to the fact that individual liberty is at stake and judges are therefore given more discretion to prevent injustice such as in the case of R v Taylor [1950].
The High Court is bound by the decisions of its superior courts. And the decisions of the High Court are binding on itself as well as on the courts of a lower rank. A Divisional Court of the High Court, sitting as an appellate court, is generally thought to be bound by its own previous decisions in the same way as the Court of Appeal, such as in the case of C (a minor) v DPP [1994].
When sitting as a court of first instance, the Divisional Court treats its own previous decisions as highly persuasive but is not strictly bound by them and judges are free to depart from them. In the case of Re Smith [1988], Warner J stated that where a High Court judge is faced with two contrary Court of Appeal decisions, he is bound to follow the later of them.
As for the County and Magistrates’ courts, they do not create precedents and are bound by all its superior courts.
The doctrine of judicial precedent has been argued to have restricted judges over time to decide cases based on a particular set of principles. In a certain uniformed way, the judiciary is made to interpret and apply the law. In this sense, the judges are not given much discretion. However, judges via several situations have tried to bypass the doctrine of judicial precedent, especially when a ratio in a case is unclear or when a precedent is less persuasive. One occasion that enables the judges to defy the doctrine is when legislation had expressly provided for the judges to do so. As an Act of Parliament is superior over case law, a later statute can efficiently allow judges to ignore the precedent. The Year and a Day Rule originated from the case of Dyson [1908]. It was a binding precedent until later when it was found out of date and eventually removed by legislation proposed by the Law Commission in the Law Reform (Year and a Day Rule) Act 1996.
In cases where new issues of the law are raised, the judges would have no precedent to follow and so could exercise their discretion accordingly when deciding cases, such as in the cases of Airedale NHS v. Bland [1993], Marks & Spencer v. One In a Million [1998] and the case of Re A [2003].
A court is not bound by the principles and decisions of courts below it, otherwise appeals would be impossible. Thus, a decision of a lower court may be reversed or overruled. However, judges tend to avoid departing from previous precedents unless those precedents were truly in the wrong, had created injustice and there were new material facts to show that the precedents were no longer good law such as in the cases of Fitzpatrick v Sterling Housing Association [1999]HL and Bellinger v. Bellinger[2002]HL.
As society gradually advances, ideas and principles change from time to time and the law, being flux, adapts accordingly. Therefore, it might be that an action considered to be illegal in the eyes of the law in a particular period of time would not be so perceived in another length of time. In this sense, judges do have some discretion to upgrade and depart from the more archaic and/or orthodox principles as established in previous precedents such as in the case of R v. R [1991] (therefore overruling Miller) [1954].
A future tactic judges seem to use to overcome the doctrine of judicial precedent would be distinguishing. The doctrine of judicial precedent provides for latter cases to follow the decisions of previous cases, where the material facts happen to be similar. So, at times, since there are quite a few precedents, when judges decide cases, they tend to choose to follow a precedent which they feel to be more in agreement with. This shows that judges in fact, do possess a certain amount of discretion. It has even been argued that in practice, judges seemed to have first come to decisions or conclusions of their own before actually searching and relying on precedents in line with their decisions to back them up. In the case of Merritt v Merritt [1970] CA, Balfour v Balfour [1919] was a prima facie precedent. Yet, the Court of Appeal held that a material fact, which was marital relationship, differs in both cases, thus Balfour was not a binding precedent.
Lastly, in extremely rare occasions, a judge may choose not to follow a binding precedent if a particular point of law has been taken on appeal to the House of Lords and the lords have not yet ruled. Such was the case in Kingscastle v Owen-Owen (1999) CA where Hirst LJ declined to rule until the case of Fitzpatrick was decided.
Therefore, basically, although it may well seem that judges has little discretion when interpreting and applying the law due to the nature of the doctrine of judicial precedent, it is only to a certain degree that judges are so bound.
By: Sylvia Ching-Ye Kong Date: 1 August 2004