Law LA1: Precedent Precedent Unit 2 AS

Law LA1: Precedent Objectives What You Need to Know: What is meant by a system of binding precedent The court hierarchy How a precedent can be altered or avoided The limitations on judicial law-making What You Need to Discuss: The balance between certainty and flexibility in the operation of precedent The law-making partnership between Parliament and the courts Critically evaluate the advantages & disadvantages of precedent

Law LA1: Precedent Introduction The English Legal System is a Common Law system. Much of the law has been developed over time by the courts. The basis of this system of precedent is the principle of stare decisis. This requires a later court to use the same reasoning as an earlier court where. The two cases raise the same legal issues - ensures a just process.

Law LA1: Precedent Three Essential Elements A hierarchy of courts: This establishes which decisions are binding on which courts Decisions of higher courts are binding on lower courts Highest court = House of LordsHouse of Lords Next most authoritative court = Court of Appeal The Divisional Courts and the High Court can also establish precedent BUT bulk of common law is found in decisions of the House of Lords and Court of Appeal Note also the position of the Privy Council & the European Court of Human Rights

Law LA1: Precedent Accurate Law Reporting Allows legal principles to be collated, identified and accessed. Earliest form = the Year Books (from 1272). Modern reporting dates from the Council on Law Reporting (est. 1865).Council on Law Reporting Also private series of reports (e.g. All ER). Journals (e.g. NLJ) and newspapers (e.g. The Times). Most recent innovations: on-line systems (e.g. LEXIS), and the internet.internet

Law LA1: Precedent The Binding Element Judgment contains four elements: 1.Statement of material (relevant) facts 2.Statement of legal principle(s) material to the decision - the ratio Decidendi 3.Discussion of legal principles raised in argument but not material to the decision - obiter dicta 4.The decision or verdict

Law LA1: Precedent The Binding Element The binding element in future cases is the ratio. Obiter dicta, while never binding, may have strong persuasive force Other forms of persuasive authority include: Decisions of other Common Law jurisdictions (esp. Australia, Canada and New Zealand). Decisions of the Privy Council - see Attorney General for Jersey VPrivy Council Holley (2005). Writing of legal academics.

Law LA1: Precedent Flexibility and Certainty Certainty needed to allow people to plan/lawyers to advise. Flexibility needed to enable Common Law to develop. Therefore, system needs to balance these two aims. Binding nature of the ratio creates a level of certainty.

Law LA1: Precedent How Judicial Precedent Works Overruling - higher courts can overrule lower courts Follow – if the facts are similar the precedent set by the earlier court is followed Distinguishing - where a lower court is able to point to material differences that justify the application of different principles Departing - where, in certain circumstances, a court can depart from its own previous decision Reverse – on appeal a higher court may change the decision of a lower court

Law LA1: Precedent House of Lords and Departing Until 1966, bound by its own previous decisions (London Tramways v LCC [1898]) Lord Chancellor issues the Practice Statement: Normally bound, but may depart when it is right to do so: Anderton v Ryan (1985), R v Shivpuri(1987); Rondel v Worsley (1969), Hall v Simons (2000); R v Caldwell (1981),R v G and another(2003) R v R (1991)

Law LA1: Precedent The Court of Appeal and Departing Court of Appeal (Civil Division) and departing: Normally bound, subject to exceptions established in Young v Bristol Aeroplane Co [1944] and R (on the application of Kadhim) v Brent London Borough Housing Benefit Review Board (2001), e.g. The previous decision was made per incuriam There are two previous conflicting decisions There is a later, conflicting, House of Lords’ decision A proposition of law was assumed to exist by an earlier court and was not subject to argument or consideration by that court

Law LA1: Precedent Court of Appeal and Departing Court of Appeal (Criminal Division) and departing: Normally bound, subject to the ‘Bristol Aeroplane’ exceptions Also not bound where, in the previous case, the law was misapplied/misunderstood resulting in a conviction (R v Taylor [1950]) Extra flexibility due to dealing with the liberty of the citizen

Law LA1: Precedent Court of Appeal General rule – decisions of Privy Council are only persuasive, however see : R v James and Karimi (2006) - Court of Appeal applied the Privy Council’s judgment in Attorney General for Jersey v Holley (2005) rather than the House of Lords’ judgment in R v Smith (Morgan) (2001)

Law LA1: Precedent just system impartial system practical rules certainty flexibility  developments contingent on accidents of litigation û Retrospective effect – SW v UK (1996); R v C (2004)  Complex  Rigid û Undemocratic Advantages and Disadvantages

Law LA1: Precedent Airedale NHS Trust v Bland (1993) R v Dica (2004) Kleinwort Benson Ltd v Lincoln City Council (1998) DPP v Jones (1999) Fitzpatrick v Sterling Housing Association td (2000) Gillick (1985) Donoghue v Stevenson (1932) R v R (1991) Should Judges Make Law?

Law LA1: Precedent Test Questions Explain the principle of stare decisis. Describe the hierarchy of English courts. Give a brief account of law reporting. Discuss the binding and persuasive elements in a court judgement. Explain the conflict between certainty and flexibility. Describe how flexibility is introduced into a binding system. Evaluate the effectiveness of the operation of precedent, including possible reforms.

Law LA1: Precedent 1.For information of the judicial work and judgements of the House of Lords, visit For information on the judicial work of the Privy Council, visit For information on the court system generally, access to judgements from various courts, and other useful links, visit Useful Websites