JUDICIAL PRECEDENT

Objectives Explain the elements of precedent and the types of precedent. Outline the court hierarchy. Discuss how a precedent can be altered or avoided, including the roles of the Supreme Court and Court of Appeal in relation to precedent. Discuss the advantages and disadvantage of precedent and the limitations on judicial law making.

Introduction The English and Welsh legal system is a common law system, which means that much of our law has been developed over time by courts. Our law is developed by judges, using a system of judicial precedent. What does this mean? Oxford English Dictionary: An earlier event or action that is regarded as an example or guide to be considered in subsequent similar circumstances. Legal Context: Judicial Precedent refers to the source of law where past decisions of the judges create law for future judges to follow. It is also known as case law.

like cases are decided alike higher courts bind lower courts Judicial Precedent The basis of the system of precedent is the principle of: STARE DECISIS (stand by what has been decided) like cases are decided alike higher courts bind lower courts A later court must use the same reasoning as a previous case where the two cases raise the same legal issues Decisions of higher courts are binding on lower courts

Like cases are decided alike The Judgment JUDGMENT OBITER DICTA “other things said” RATIO DECIDENDI BINDING PRECEDENT PERSUASIVE “reasons for deciding”

Higher courts bind lower courts The Court Hierarchy Can create ORIGINAL precedent

Persuasive Precedent Persuasive Precedent is judgments which do not HAVE to be followed, but could provide good law for judges to follow: Courts lower in the hierarchy Decisions of the Privy Council Statements made obiter dicta A dissenting judgment Decisions of other common law jurisdictions.

Original Precedent Some areas of our law originate entirely from judicial precedent, in other words, law made by judges. This is called original precedent. What are the immediate problems with “judge made law”? R v R (1991) Donoghue v Stevenson (1932) Gillick v West Norfolk and Wisbech Area Health Authority (1985)

Overrule Reverse Distinguish Avoidance Techniques Higher courts can overrule lower courts. Example: Candler v Crane Christmas & Co (1951) was overruled in Hedley Byrne v Heller & Partners Ltd (1964) Reverse on appeal, a higher court may change the decision of a lower court. Example: Re Pinochet (1999) Distinguish where a lower court is able to point to material differences that justify the application of different principles. Example: Balfour v Balfour was distinguished in Merritt v Merritt

Supreme Court and Precedent Practice Statement Until 1966, the House of Lords was bound by its own previous decisions as held in London Tramways v LCC (1898). In 1966, the Lord Chancellor issued the Practice Statement allowing the House of Lords to depart from their previous decision “where it appears right to do so”. It was issued because it was recognised by the Law Lords that “too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law”. Important points: There is a reluctance to use the power, and as such, it is not often used. The power only applies to the Supreme Court and no other court within the hierarchy. The constitutional role of the judge if not to make the law, so the power has to be used carefully. The phrase ‘when it appears right to do so’ is very vague and there is little guidance as to what it actually means.

Use of the Practice Statement CIVIL CASES

Use of the Practice Statement CRIMINAL CASES

Court of Appeal and Precedent Young v Bristol Aeroplane Co (1944) Civil Division: The Court of Appeal is bound by the decisions of the Supreme Court or House of Lords as it was, but it is also bound by its own previous decisions EXCEPT in the limited circumstances laid down in Young: Where there are two conflicting previous decisions; Where a previous decision has been overturned by a later House of Lords/Supreme Court decision; Where the previous decision was ‘per incuriam’ (wrongly decided) Criminal Division: Where the previous decision was ‘per incuriam’ (wrongly decided)= AND: Where, in the previous case, the law was misapplied/misunderstood resulting in a conviction – R v Taylor (1950). This extra flexibility is due to the fact that we are dealing with the liberty of the citizen.

Impact of the Human Rights Act 1998 s2 Human Rights Act 1998   Requires all judges, when deciding on Convention points, to ‘take account’ of the case law of the European Court of Human Rights. This effectively creates a new source of case law. Vinter v UK (2013) This was a group of cases concerning some of the UK’s most dangerous criminals, who appealed to the Court of Appeal on the grounds that their sentence of a “whole life order” was a breach of Article 3 ECHR – right to be free from inhuman and degrading treatment.   The ECHR ruled that whole life orders were in breach of Article 3 and that a review mechanism should be in place to assess whether a whole life term was still necessary. It recommended this review should be left no later than 25 years into the sentence. Discuss: Does the Vinter decision stop judges from making any more whole life orders?

Certainty v Flexibility Practice: FLEXIBILTIY Avoidance techniques Overrule, Reverse, Distinguish House of Lords – Practice Statement Court of Appeal – exceptions in Young v Bristol Aeroplane (1944) s2 Human Rights Act 1998 Original Precedent – R v R (1991) Theory: CERTAINTY Binding Precedent – *Higher courts bind lower courts *Like cases decided alike = Follow

Advantages of Precedent Certainty : The precedent system encourages consistency as like cases are decided alike. This means that the system is predictable, and therefore people can plan ahead with reasonable confidence that they are acting within the law. Flexibility:  Judges can distinguish cases on their facts. The Practice Statement allows the law to develop and adapt, thus keeping up with modern times. The precedent system has enabled whole areas of law to grow, with little statutory intervention to accompany them: for example, the laws of contract and tort. Objectivity – the system of precedent prevents judges exercising personal prejudices, making the courts’ decisions more transparent and creating legal rules that are objectively acceptable.  Legal Growth: This means that new laws can be created to deal with difficult and new legal dilemmas. Famous examples of such cases include Airedale NHS Trust v Bland (1993) on the question of whether a life support machine should be switched off when a person was in a persistent vegetative state; and the case Re A (2000) on the question whether Siamese twins should be separated by an operation when the hospital recommended this, but where the patient had clearly expressed their opposition. Legal growth also comes in the light of practical experience.

Disadvantages of Precedent Judges are drawn from a narrow social spectrum. Their views are therefore less likely to be representative of those of the general public. This system is rigid as the lower courts have to follow the decisions of higher courts. It can be argued that the Court of Appeal should be allowed to overrule decisions of the House of Lords in certain defined circumstances, as it is often the ultimate court for most litigants. Judgements can be long and unclear, and so finding the ratio decidendi is not an easy task. In seeking to avoid a precedent, judges may make distinctions which seem neither logical, nor in line with the general rules that have been developed. Case law is not designed for coherent legal development: the law inevitably develops in a piece-meal, incremental fashion, and the directions of such change are not predictable. Only the House of Lords is in a position to give an ultimate ruling on an issue before the courts, and it is extremely expensive and time consuming to get a case this far. Even then, the Practice Statement means that the law might not be settled. The system of precedent cannot initiate legal change since it has to wait for an appropriate case to come before the courts. Some judges, notably Lord Denning and other ‘grand style’ judges have been frustrated by the restrictions imposed by the precedent system, believing them, at times, to create injustice. Judicial precedent leads to complex and imprecise bodies of law, thus encouraging speculative litigation.