Law Making: Judicial Precedent

How does Judicial Precedent Operate?

Operates by Stare Decisis (follow whats already been decided)

How do Judges follow Stare Decisis?

Judges must follow judgements from the higher courts and usually follow them from the lower courts.

What does a Judgement contain?

Facts (what happened), a Ratio (reason for the decision which is binding) and Obiter Dicta (other things said)

What did Sir Rupert Cross say about a Ratio?

“any rule expressly or impliedly treated by the judge as necessary steps in reaching his conclusion”

Are Obiters persuasive or binding?

Obiters are persuasive, not binding (Gotts the court followed the Obiter from Howe Re: attempted murder)

Do Judges seperate out each element?

Judges do not seperate out each element, and often in appellate decisions there’s more than one judgement

What is the problem when there is more than one judgement and where can this be seen?

This can make it difficult to find the ratio (Centeral Asbestos Co Ltd V Dodd, the CA were unable to find a HOL ratio)

Is the Civil Division binding on the criminal division?

The Civil Division does not bind the criminal and vice versa.

What is the top of the Court Heirachy in the Civil Division and the Criminal Division?

The Supreme Court (HOL)

What is the second of the Court Heirachy in the Civil Division and the Criminal Division?

The Court of Appeal (Civil and Criminal)

What is the third of the Court Heirachy in the Civil Division?

The High Court (Divisional)

What is the third of the Court Heirachy in the criminal division?

The Kings Bench Division of the High Court

What is the third of the Court Heirachy in the Criminal Division?

The Crown Court

What is the fith of the Court Heirachy in the Civil Division?

The County Court

What is the fith of the Court Heirachy in the Criminal Division?

The Magistrates Court

What is the sixth of the Court Heirachy in the Civil Division and the Criminal Division?

Courts at First Instance

What is the seventh of the Court Heirachy in the Civil Division and the Criminal Division?

Appellate Courts

When was it seen that the supreme court historically bound itself?

London Street Tramways V London County Council

Can the HOL depart from previous decisions and where was this seen?

The Practice Statement 1966 means HOL can depart from previous decisions when it appears right to do so

When is departure from previous decisions used rarely?

Used rarely in criminal law to ensure fairness and consistency in the law; rarely used in civil law as the duration of contracts etc is significant

What is an example of a civil case where the Supreme court overruled?

British Railway Board V Herrington overrules Addie V Dumbreck

What is an example of a criminal case where the Supreme court overruled?

R V G overrules Caldwell

Where did the supreme court decide that it still had the power to use the practice statement?

Austin V London Borough of Southwark

Where was it seen historically that the European Court of Justice overruled the Supreme Court?

S3 of the European Communities Act 1972

What was the act that stated the European Court of Justice no longer overrules the Supreme Court?

S3 European Union (Withdrawal) Act 2018

Where is it seen that The Supreme Court must take into account the jurisprudence of the European Court of Human Rights?

S2 Human Rights Act 1998 in Manchester City Council V Pinnock

What did Lord Neuberger highlight about the SC not being bound to ECHR?

The SC is not bound to follow the ECHR, but that its a discursive relationship

Where was the discursive relationship between SC and ECHR?

R V Horncastle where the SC did not follow the ECHR the ECHR took this into account in a future judgement.

Who is the Court of Appeal bound by and bind?

Bound by the Supreme Court and binds all courts below. Split into two division: civil does not bind criminal or vice versa

What are the exceptions for both The Court of Appeal Civ and Crim division?

Young V Bristol Airplane Co Ltd the court can depart from a previous decision

When can the court of appeal depart from a previous decision?

1) There are two conflicting previous authorities from the Court of Appeal

2) There is a decision of the Supreme Court that effectively overrules the Court Of Appeal decision

3) The decision was made per incuriam (by mistake) - this cannot be that the judges dislike the decision; it must be that the court either misunderstood already existing rules (Williams V Fawcett)

What does is state under the Civil Division of The Court of Appeal?

New human Rights Challenge R( On the Application of Kadhim) V Brent London Housing Benefit Review Board -A challenge can be made where an un-argued point of law is brought before the court

What does it state under the Criminal Divisions of The Court of Appeal?

More flexibility as they deal with liberty.

Recognised in R V Taylor that they should depart from precedent if its “necessary in the interest of justice”

What happens when the High Court is sitting as a divisional court (KBD in crime)

• It sets precedent

When set as appellate courts what can they set precedent for?

Magistrate courts

What is binding precedent?

Any authority that binds the court hearing the case; commonly used example: Donoghue V Stevenson sets out the neighbourhood principle

What is original precedent?

There is no prior authority on the issue and so judges reason by analogy comparing principles from older cases with the new one (Hunter V Canary Wharf)

What can original precedent be argued to be?

Can be argued as judges ‘discovering’ the law, but others argue judges are ‘creating’ the law

Is Persuasive precedent binding?

There is no binding authority, judges may be persuaded by other authorities

What are the types of other authorities which judges may be persuaded?

a) Decisions from lower courts (R V R)

b) Decisions made by the judicial committee of the Privy Council (The Wagon Mound No1)

c) Obiter Statements from other cases (Howe and Gotts)

d) Dissenting Judgements from other judges (Lord Dennings dissent in Cnalder V Crane)

e) Decisions from other countries (Bazley V Curry)

What is an acronym for remembering the methods of handling precedent?

Follow

Overrule

Reverse

Distinguish

What is the first method of handling precedent?

Following: The court follows a precedent that has already been established; often done by lower courts, but can also be done by the SC

What is the second method of handling precedent?

Overruling: Only possible by an appellate court (most commonly the SC). The court overrules a previous authority

What is the third method of handling precedent?

Reversing: Only possible by an appellate court. The Higher Court changes the decision of the lower court in the same case (Sweet V Parsley)

What is the fourth method of handling precedent?

Distinguishing: Where a court typically lower court, does not apply an otherwise binding ratio as they claim the facts are different (Balfour V Balfour)

Advantages: Certainty

• Judges follow past directions and so the outcome of cases can be known in advance

• Lawyers can advise their clients on the likely outcome of a case

• It allows people to operate their businesses knowing that financial and other arrangements they make recognised by law.

• The House Of Lords Practice Statement 1966 pointed out how important certainty is

Advantages: Consistency and Fairness

• It is seen as just and fair similar cases should be decided in a similar way. The law must be consistent in its application if its credible

Advantages: Precision

• Over time the law can become extremely precise as over time each case incrementally adds to the previous points of law

Advantages: Flexibility

• The Court can change the law to follow developments in society (BRB V Herrington)

Advantages: Time Saving

• Once a principle has been established, it can be seen through the whole system if law operating

• Lawyers are able to advise their clients faster; saving time, money, preventing unnecessary litigation

Advantages: Filling gaps

• Where there is no statute law on a topic, such as the law of occupiers liability, towards trespassers the law can fill the gaps BRB V Herrington

Disadvantages: Rigidity

The law can be too inflexible if bad decisions which may be continued because

• Lower courts are bound to follow the decisions of the higher courts

• The Court of Appeal is bound to follow its own decisions (most appeals end here)

• Only the Supreme Court can change their own prior precedents

Disadvantage: Complexity

There are nearly 500,000 reported cases each year- its therefore difficult to find relevant precedent without expensive databases (Westlaw or Nexis)

Judges also do not explain what the ratio/obiter of a case is- this leads to the problem in Dodd’s

Disadvantage: Illogical Distinctions

Lower courts distinguishing has led to hair-splitting distinctions (Merritt V Merritt)

Disadvantage: Slowness of Growth

Precedent cannot be changed until someone brings the issue to court- this means that the law is not reformed.

Disadvantage: Uncertainty

There can be uncertainty where higher courts reverse decisions of the lower courts (Kingston and Involuntary Intoxication)