Explain how the doctrine of Judicial Precedent operates. What is the importance of judges being able to use the doctrine to distinguish cases on their facts?

A previous case is only binding in a later case if the legal principle involved is the same and the facts are similar.  Distinguishing a case on its facts, or on the point of law involved, is a device used by judges to avoid the consequences of an earlier inconvenient decision which is binding on them.  ‘Distinguishing is a major factor in allowing the doctrine of precedent to remain flexible and meet the needs of a changing society.’

‘When faced with a case on which there appears to be a relevant earlier decision, judges can follow the precedent if the facts are sufficiently similar.  Where the facts of the case before the judge are significantly different from those of the earlier one, the judge distinguishes the two cases and need not follow the earlier one.’

Overruling can occur if the previous court did not correctly apply the law, for example, the overruling of Anderton v Ryan [1985] by the House of Lords in R v Shivpuri [1986] concerning the Criminal Attempts Act 1981.  Overruling can be criticised on the ground that law making should be left to Parliament and not judges.

‘Reversing is the overturning on appeal by a higher court, of the decision of a lower court.  The appeal court will then substitute its own decision.’

The rules concerning which courts are bound by which are known as the rules of judicial precedent.  As well as being bound by the decisions of courts above them, some courts must also follow their own previous decisions.

The decisions of the European Court of Justice are binding on all English courts.  It appears not to be bound by its own decisions.

The HoL is not bound by its own previous decisions.  In 1966 the Lord Chancellor issued the Practice Statement giving the HoL flexibility to depart from past decisions.  The Statement said that former decisions would normally be treated as binding, but the Lords could ‘depart from a previous decision when it appears right to do so’.  It was not until the case of  that this rule became fixed.

The Court of Appeal is bound by decisions of the HoL even if it considers them to be wrong.  ‘The Court of Appeal (civil division) held that it was bound by its own previous decisions subject to the following three exceptions:  (1) Where there are two conflicting decisions.  (2) Where there is a later, conflicting, HoL decision.  (3) The previous decision was given per incuriam (by mistake).’

In the criminal division, precedent is not followed as rigidly because a person's liberty may be at stake.

 

The High Court is divided between the Divisional Courts and the ordinary High Court.  All are bound by the Court of Appeal and the HoL.

Decisions made on points of law by judges from the High Court sitting at the Crown Court are not binding, though they are of persuasive authority.

The County Court and Magistrates' Court do not create precedents and must follow decisions of all the above courts.

In order for the doctrine of precedent to operate and expand, an efficient system of law reporting is required.  The Incorporated Council of Law Reporting was set up in 1865 and controlled by the courts.  It produces the official law reports which are written by trained barristers.  Other reports include the All England Law Reports.

My opinion is that our system of judicial precedent is admirable, but there are techniques in which judges can avoid this system quite simply.  There are many advantages and disadvantages for the system of precedent.

‘The advantages are that it serves the interests of justice and fairness as similar cases are treated in a similar way.  It creates certainty in the law and allows lawyers to advise clients on the probable outcome of a case.  The law is flexible to develop and change with society.  It is a timesaving device as for most situations there is an existing solution.  

The disadvantages are that difficulties can arise in deciding what the ratio decidendi is, particularly if there are a number of reasons.  The system is too rigid.    This can create injustice in an individual case.  The law is slow to develop.  Cases can easily be distinguished on their facts to avoid following an inconvenient precedent.  There is far too much case law and it is too complex.’

Bibliography

• Elliott, Catherine, Quinn, Frances, (2004).  English Legal System, 5th edition.  London: Pearson Education
• Martin, Jacqueline, Turner, Chris, (2003).  The English Legal System-Key Facts.  London: Hodder & Stoughton
• Darbyshire, Penny, (2004).  Nutshells-English Legal System, 6th edition.  London: Sweet & Maxwell

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