Judicial precedent

The system which tells Judges which previous decisions they need to take account of when they are making decisions on a case before them AND how Judges make law

Judicial Precedent

where past decisions of judges create law for future judges to follow.

The Court Hierarchy

Court of Justice of the European Union (UK courts only bound by CJEU on matters of EU law) CJEU does not bind itself.

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Supreme Court (Binds lower courts and itself unless the Practice Statement applies)

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Court of Appeal: Criminal Division/Civil Division - Criminal and Civil division do not bind each other. Binding on itself unless exceptions in Young v Bristol Aeroplanes apply. Binds lower courts.

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High Court (Divisional court) 3 divisions - Family, Chancery and Kings Bench (Binds itself subject to same exceptions as for Court of Appeal. Binds lower courts)🠦 Criminal and Civil

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County Court (Binds no one) 🠦 Civil

Magistrates’ court (Binds no one) 🠦 Criminal

Crown court (Binds no one)🠦 Criminal

🠦 Judicial Committee of the Privy Council is not binding but does act as persuasive precedent.

Appellate Courts

These courts only hear appeals.

The Court of Justice of the European Union - only relevant in cases of EU law. There is no right to appeal to the CJEU from a UK court.

European Court of Human Rights - Supreme Court must take account of any decisions but it is not bound to follow them.

The Supreme Court - highest court, it hears criminal and civil law appeals. Binding on all lower courts and replaced the House of Lords in 2009. Follows its own past decisions but has the power to depart from them.

The Court of Appeal - it is bound by the SC’s decisions, binds all courts beneath it. 2 divisions, Criminal and Civil. It will usually follow its own past decisions but can depart from them using different powers.

The Divisional Courts - part of the High Court, bound by the SC and CA, binds all the courts below them. Usually follow their own past decisions and have similar powers to avoid to those held by the CA.

Courts of First Instance

The High Court - bound by the SC, CA and Divisional Courts, binds all inferior courts. Usually follow each other’s decisions but don’t have to.

The inferior courts - Crown Court, County Court, Magistrates Court. Bound by all courts above them.

Judgements

Stare decisis - ‘let the decision stand’. Once a decision has been made on how the law applies to a particular set of facts, similar cases should be treated in the same way.

Ratio decidendi - ‘reason for deciding’. Explanation of the legal principles on which the judge has made the decision, this part of the judgement becomes the binding precedent.

Obiter dicta - ‘other things said’. Summary of the case and the law, could also be a discussion of a hypothetical situation, could influence later judges if there is no binding precedent to follow.

Original precedent

Precedents created in cases where a new point of law comes before the court and where there is no existing case law or statute.

Examples:

Re A (Conjoined twins) - The CoA allowed the separation of conjoined twins stating that the doctors involved would be given a defence to any claim of harm against the twins.

An example of creating an original precedent by analogy:

Hunter v Canary Wharf - Residents experienced interference with their TV signals due to the construction of a metal plated tower. No precedent to reply on so they looked at Aldred’s case where a person claimed for loss of view and failed to get compensation, the court followed the reasoning in this case so the claims failed.

Donoghue v Stevenson - The HoL founded the modern law of negligence, allowing a woman to sue the manufacturer of a bottle of ginger beer when she found decomposing snail in the bottle. ‘neighbour principle’

Brown - The HoL decided that consent cannot be used for actual or grievous bodily harm except in certain circumstances such as tattooing.

Binding precedent

Binding precedent is where an original precedent is created and must be followed for future similar cases.

Examples of cases that were bound:

Daniels v Whites Lemonade - D won compensation from Whites Lemonade based on the precedent from Donoghue v Stevenson when chemicals were found in his lemonade.

Wilson - The CoA followed the precedent in Brown and said that a husband who branded his wife with a hot knife was not guilty as the defence of consent was able to be used as it was like tattooing.

Persuasive precedent

Decision of lower courts - The courts follow the decision of a court below them in the hierarchy. E.g. R v R: attempted rape of a woman by her estranged husband the Crown Court found him guilty even though there was an ‘exception’ to the law on rape for husbands. He appealed and both appeal courts which heard the case were ‘persuaded’ by the lower court’s and found him guilty.

Decisions of the Judicial Committee of the Privy Council - The final court of appeal for some Commonwealth countries. Not in our domestic legal system. E.g. The Wagon Mound (No.1): Australian case, set the test for ‘remoteness of damage’ in Tort law. Decisions of the JC of the PC are not binding.

Decisions of foreign or Commonwealth courts - Courts that are not in our own legal system but may have ruled on an issue being discussed. E.g. Re S: a woman in labour refused to have a Caesarean section even though doctors said it was necessary to save hers and the baby’s lives. Court ordered the procedure using an American case.

Dissenting judgements - A judge may not have agreed with the decision in a case and made a comment in his judgement which may be useful to another case. E.g. Candler v Crane Christmas: Negligent statements which someone may rely upon to their cost, the dissenting judgement of Lord Denning was used as a persuasive precedent in the later case of Hedley Byrne v Heller.

Obiter dicta - The obiter may be used to help persuade a judge in another case to decide in a certain way. E.g. R v Howe: Ds were not able to use duress as a defence to murder. One of the judged commented in his judgement that he did not believe duress could be used as a defence to attempted murder either. This was used as persuasive precedent in R v Gotts when a teenage boy attempted to kill his mother

Decisions of the European Court of Human Rights - Decisions of the ECHR are not binding but could be persuasive. E.g. Price v Leeds City Council: Travellers who has a lawful eviction order served on them by LCC were not able to argue that Article 8 of the ECHR was binding over English law cases.

Avoiding precedent

Reversing - appeal takes place from an original decision and the appeal court changes the decision of the lower court. E.g. Fearn and others v Board of Trustees of the Tate Gallery: Residents alleged their enjoyment of their premises was being interfered by visitors looking into their homes. The SC reversed the decision of the CoA and decided it was a nuisance.

Distinguishing (old case is still valid law)- Only method available to judges in lower courts of avoiding past decisions. It can be used by higher court judged too. E.g. Balfour v Balfour: B verbally agreed to pay his wife a monthly allowance while he was working abroad. The marriage broke down and he refused to pay, could not be enforced as there had been no intention to create a legal relationship at the time of the agreement. Merritt v Merritt: Husband left his wife to live with another woman, signed an agreement that if the wife paid the mortgage on their jointly owned house he would transfer the house to her. He refused, the wife brought an action and the husband argued the court should apply the decision in Balfour as binding precedent. This court disagreed and distinguished because: agreement in Balfour made whilst they were still a couple. Agreement in Merrit was in writing. Merritt had the intention to create a binding agreement.

Overruling (old case is no longer valid law) - Only carried out by an appeal court and involves the overruling of a decision of the law made by a lower court or overruling a decision made by itself in a different case. E.g. BRB v Herrington: A boy was injured on a railway line, even though he was trespassing the HL said he was entitled to claim compensation. This decision overruled Addie v Dumbreck: the family of a trespassing child were unable to claim compensation when the child was killed, court said there was no doc because the child was a trespasser.

How the Supreme Court follows/avoids precedent

In 1898 London Street Tramways v London County Council ruled that the HL should follow past decision unless the decision has been made in error.

In 1966 this was changed, the Practice Statement was issued saying that in future the HL could depart from its own prevision decisions when ‘it appears right to do so’ although they should bear in mind ‘the especial need for certainty in the criminal law’

Examples of PS in use:

Conway v Rimmer (first use) - civil case on a technical issue about recovery of documents.

BRB v Herrington + Addie v Dumbreck

R v Shivpuri (first criminal case used in) - D believed he was smuggling drugs, found to be white powder that was harmless. Charged with drug smuggling and HoL decided that he could be guilty of attempting an offence that was impossible. This changed the judgement in Anderton v Ryan: D bought a video believing it to be stolen but it wasn’t. She confessed to the police and was charged with attempting to handle stolen goods. HoL said that she could not be guilty of attempting the impossible.

R v R & G - 2 boys set fire to some newspapers and left them. The first spread to other shops and caused substantial damage. Charged with criminal damage under the Criminal Damage Act, the HL used the PS to overrule the definition of ‘reckless’ from MPC v Caldwell.

Austin v Southwark LBC - the Supreme Court confirmed that the PS applied to them even though it was written for the House of Lords

How the Court of Appeal follows/avoids precedent

The Court of Appeal must follow its own previous decisions although the two divisions do not bind each other.

Civil division: is normally bound by its own past decisions unless one of 3 exceptions in Young v Bristol Aeroplane Co Ltd:

1. Conflicting decisions on a point in past CA cases: in the event of conflicting decisions on a point in past CA cases, the court hearing the present case can decide which one to follow. Parmenter: D caused serious injuries to his baby son, court had to decide whether the injuries amounted to ABH or GBH. Two conflicting decisions of Spratt and Savage. The court in Parmenter followed the definition in Spratt.

2. Later HL/SC decisions that has overruled the CA decision: where the CA has made a decision on a point, and a later SC decision has effectively overruled that CA decision, the CA must follow the SC decision, even though that would mean not following its own previous decision. E.g. Fearn and others v Board of Trustees of the Tate Gallery.

3. Per incuriam (with lack of regard to the law or the facts): Rakhit v Carty: Carty, the Landlord of property, wanted possession of a flat. On deciding the applicable rules the CA departed from the earlier decision in Kent v Millimead Properties on the grounds that the court had acted per incuriam on the understanding of the Rent Act 1977 provisions.

Criminal Division: Can use all the exceptions from Young’s case and also has the added flexibility of a fourth reason for departing from a previous decision- if the law had been misunderstood or misapplied. This is because the criminal law can take away a person’s liberty so it is very important to get it right. R v Rowe: D was arrested on suspicion of terrorist activities, when travelling from France to England. The CA departed from its earlier decision in R v M on the basis that it had been decided per incuriam.

Advantaged of the system of judicial precedent

Certainty - the courts follow past decisions the law will be certain and lawyers can advise their clients more easily, e.g. Donoghue v Stevenson + Daniels Lemonade

Consistency and fairness - the rules must be consistent to be credible and rules should be applied in the same way to everyone, e.g. Hunter v Canary Wharf + Aldred’s case.

Flexibility - because of overruling, distinguishing and the use of the practice statement, e.g. BRB v Herrington + Addie v Dumbreck.

Save time - where a principle has already been considered it will be applied in the future. Having an established precedent in the law may mean that cases with similar facts are unlikely to go through the lengthy process of litigation.

Precise - as the principles of law are set out in actual cases the law becomes very precise, it builds up gradually as cases with slightly different facts come before the courts, e.g. Balfour v Balfour + Merritt v Merritt.

Disadvantages of the system of judicial precedent

Rigid and inflexible - Because the courts have to follow each other.

Complexity - Because cases are reported on different databases and the judgements are long it may be difficult to find the ratio decidendi.

Illogical differentiations - The use of distinguishing can lead to areas of law being complex and to illogical differentiations being made between two cases that look similar.

Slow - The use of precedent means that the law may develop slowly.

Change - Change in the law will only take place if parties appeal their cases as only the highest courts have the powers to change the law.