To answer this we need to look at the individual courts.
House of Lords: until 1966, the House of Lords was bound by it’s own decisions. However, in 1966, it issued a statement saying, “ We are no longer bound by our own previous decisions. We will depart from them when it is right to do so”. It doesn’t change them very often, as it is important the law remains consistent or certain.
The House of Lords changed it’s own previous decision in the case of R v R (1991) when it changed the law on marital rape.
The Court of Appeal: as a general rule the court of appeal will follow it’s own previous decisions, it is self-binding. However, there are three exceptions:
- it will not follow one of it’s own previous decisions if it was mad e without proper care (Per Incuriam).
- If there are two conflicting Court of Appeal decisions, the court can choose which one to follow.
- If there has been a subsequent House of Lords decision, the courts will follow the House of Lords decision.
The above rules were laid down in the case of Young v Bristol Aeroplanes (1994).
The High Court: the High Court is bound by the decisions by the House of Lords and Court of Appeal. Its decisions are binding on the Crown Court, Magistrates Court and County Court. The High court tends to be self-binding, but is not strictly binding.
The Crown Court: the Crown Court is bound by the decisions of superior courts. Its decisions will be binding on the Magistrates Court and County Court. It tends to be bound by it’s own decisions, but is not strictly binding.
The Magistrates and County Court:
They are bound by all superior courts. There decisions are not binging on any other courts.
THE DECISION:
It is important to be aware of which part of the decision in a previous case is to be regarded as binding, what really matters is that part of the decision which embodies or contains the legal rule, and which justifies a particular decision. This part of the decision is known as Ratio Decidendi (translated means the reason for the decision).
How is it identified?
It is identified by closely analysing the judgement/s, a task which is made difficult by the fact that judges do not identify the ratio decidendi for the benefit of future readers.
The ratio decidiendi can be contrasted with other parts of the judgement, which are called Obiter Dicta (translated means things said by the way).
Binding & Persuasive Precedent:
A binding precedent is a decision, which the court must follow. The courts hands are tied. More precisely it is the ratio Decidendi of a higher court.
A persuasive precedent does not have to be followed, but it may be influential or helpful (it may be persuaded to follow but it is not obliged to). A persuasive precedent may be:
• statements made Obiter Dicta in previous cases.
• Ratio Decidendi made by lower courts.
• decisions from foreign courts, especially from Canada, Australia, New Zealand, USA etc.
LAW REPORTING
In order for precedent to operate there must be an accurate record of the courts decisions. Written reports have existed in England and Whales since the 13th century – these were not very accurate, they were called Yearbooks and were written in French.
From 1535-1865, cases were reported by individuals who made a business out of selling them to lawyers – detail and accuracy varied enormously.
1865 – the council of Law Reporting was established; it was controlled by the courts. Reports became accurate and very detailed. The council still produces a serious a reports called the Law Reports.
There are other well-known reports produced by private companies, the most notable being the All England Reports (All E R), and the Weekly Law Reports (WLR).
In addition some newspapers publish law reports (including the Times & THE independent). Today electronic law reporting is gaining in popularity, an example of which is LEXIS. There are also numerous websites.
HOW PRECEDENTS CAN BE AVOIDED / HOW FLEXIBILITY IS BUILT INTO THE SYSTEM:
One advantage of precedent is certainty. However, society is dynamic (i.e. it changes). As a result the law must change or develop. Precedent contains various mechanisms, which enable the law to develop. They are:
• Overruling: where the earlier decision was made in a lower court, the judges can overrule that earlier decision if they disagree with the lower courts statement of the law. The outcome of the earlier decision remains the same, but will not be followed.
An example of this is R v R that overruled R v Miller.
•Reversing: 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. Clearly when a decision is reversed, the higher court is usually also overruling the lower courts statement of the law.
An example of this is R v Kingstone – a homosexual with paedophilic tendencies went to a hotel room. He was drugged by business associates and then introduced to a 15-year-old boy whom he indecently assaulted. He was convicted of indecent assault. The Court of Appeal reversed the conviction. The House of Lords then reversed the decision made by the Court of Appeal.
•Distinguishing On The Facts: where the facts of the case before the judge are significantly different from those of the earlier one, then the judge distinguishes the two cases and need not follow the earlier one.
An example of this is DPP v Camplin. It was distinguished from Dpp v Bedder (an impotent man went to visit a prostitute who teased him about his impotence, so he killed her. He tried to plead provocation). In Camplin a 15-year-old boy went to the house of a 50-year-old man who indecently assaulted him. The boy killed him. He was successful with his plea of provocation. Bedder was not as the facts were not the same.
ADVANTAGES OF PRECEDENT:
• Certainty: judges have to follow the decisions of higher courts in cases involving similar facts. This enables people to plan their affairs.
• Consistency: similar cases will be decided in a similar way. This is fair/just.
• Flexibility: precedent enables the common law to change as society changes through the mechanisms of reversing, overruling and distinguishing. However, cases are needed in order for the law to change, this requires the financial ability and willingness to litigate. This can take time, e.g. R v R (1991).
• Precision: the common law is contained/ set out in actual cases, so the decisions are based on the detailed facts of cases that come before the courts. Statute law tends to be based on theory/logic based on practical situations.
• Cap-filling: the common law will always fill gaps in the law. Judges will never say there is no law to cover a particular situation, e.g. Gillick v Northfolk & Wizzbeach Health Authority (court had to decide if it was lawful for doctors to issue under 16’s with contraception without parent’s knowledge and consent. They decided it was).
• Time Saving: where a precedent is well established then a case is likely to go through lengthy litigation.
DISADVANTAGES OF PRECEDENT:
• Rigidity: binding precedent may mean that bad decisions made in the past may be perpetuated.
• Complexity & Volume: the common law is contained in 10’s of thousands of decided cases. Searching for them could take a long time. Additionally, one then has to extract the Ratio Decidendi.
• Undemocratic: the law is developed by judges, who are not elected. Judges do not have the opportunity to consult others as to what the consequences of their decisions might be.
• Slow To Grow: judges have to wait for a case to come along in order to develop the law.
1a) Describe, using cases to illustrate, the system of Judicial Precedent in English law. Your answer should explain how judges may avoid following a precedent.
(20 marks)
1b) Discuss the advantages and disadvantages of the Doctoring of Precedent.
(10 marks)
