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Judicial Precedent (The House of Lords (The Practice Statement 1966 (Use…

- - - - Lords now had the flexibility to ignore past cases when 'it appears right to do so' which is very vague and did not give a lot of guidance
      - The Lords were reluctant to use this power in the first few years
      - The first major use was the change from Addie v Dumbreck (no duty of care to trespassers, only duty not to harm them to BRB v Herrington (D owes a common humanity to tresspassers
      - From the 70s onwards, the Lords were more willing under Milangeoes v Frank Textiles where Lord Denning made a change which the Lords agreed w/ while reprimanding him for changing
      - Pepper v Hart was also a major change
    - - The PS stressed that criminal law needed to be precise so the Lords were again reluctant
      - The first use was in Shivpuri which overruled Anderton v Ryan
      - The Lords recognised that they might make errors, so it was ever important to uphold the law
      - Caldwell was a objective view on recklessness in criminal damage which was changed in R v G which changed it to where D is aware of the risk
- - - - Where there are conflicting descions made by the CoA, the current case can choose which one to follow
      - Where there is a decision in the SC which overrules
      - Where the descions is made per icurium
- - - - There are two exceptions to this rule where lower courts are not bound by appeal courts
      - After Brexit, the appeal court of the European Court of Appeal will not longer apply
      - A lower court must take into account the HRA 1998 so if a past decision goes against this, they do not have to follow it
  - - - Highest court affecting the legal system (1973-2019)
      - Points of EU law can be referred to the ECJ by domestic courts
      - The ECJ only decides the point of law, then it goes home for that to be applied
      - For points of EU law, it is binding on all courts
      - This court can overrule its own past decisions, a flexible and more European approach to our own
    - - Our most senior domestic court
      - All decisions are binding on lower courts
      - Replaced the House of Lords in 2009
      - It is not bound by its own decisions (London St Tramways: Practice Statement 1966
    - - Two Divisions
      - Has to follow the Supreme Court
      - Has to follow its own decisions, though there are limited exeptions
      - Criminal division is more flexible than the civil as it is dealing w/ a person's liberty
    - - Queen's bench Division, Chancery and Family
      - Bound by the SC and CoA
      - Bound by its own descions
      - Have similar exceptions to the CoA
  - - - Bound by all those above, and can bind lower County Court
      - High Court judges can follow each other but are not bound
      - In Colchester Estates v Carlton Industries 2 decisions were made which conflicted. It was decided that the second should be followed as it had fully taken into account the first
    - - Crown, Magistrates and County
      - All bound by the higher courts and cannot create their own precedent
      - The only technicality is that technically, the Crown can create JP for the Magistrates
      - However, such events are not covered in law reports so it does not really work
- - - - Seen in R v R where Lords agreed W? and followed the same reasoning as the CoA in stating a man was guilty of raping his wife
    - - Not part of the court hierarchy so decisions are not binding
      - Many of its members are Supreme Court Lords, so PC judgements are respected and often followed
      - This can be seen with the 'Remoteness of Damage' in tort where the PC presided over The Wagon Mound case
      - In AG for Jersey v Holley (2005) the PC ruled that in the defence of provocation, D is judged objectively, contrary to a Lords descions, but later cases followed the Privy Council
    - - Seen in the law on Duress
      - R v Howe - Two men acting under the orders of a third to commit murders in a public toilet. Stated the defence of duress is not available to murder or attempted murder in obiter dicta
      - In R v Gotts, a later case, a boy was ordered to kill his mother by his father, however the mother survived. The judges held up the obiter dicta that the defence of duress was not available to attempted murder
    - - When a case is decided by majority, the judge who disagreed will have to explain why in the judgement
      - This allows future cases that go to a higher court on appeal to be decided on the disagreeing judge rather than the majority
    - - When another country w/ a similar legal system such as other commonwealth countries, their cases may be taken into consideration to help out our own
      - In R v Bentham, on the issue of firearm possession, a Canadian case was considered
    - - Wo wins between English and EcrtHR precedents?
      - In the appeals of Lambeth v Kay and Price v Leeds CC, the Lords ruled that the English courts had to follow their own precedent
      - It was for the English courts to decide how the ECrtHR principles should be applied
      - They commented that there had to be a degree of certainty in interpretation and that was best achieved by following English precedent
      - If a judge feels that his decision made under English JP is incompatible with the HRA 1998, he can give leave for the case to go to appeal
- - - - Supreme Court
        
        Court of Appeal (Civil Division)
        
        Division Courts (Chancery, Family)
        
        High Court
        
        County Court
  - - - Court of Appeal (Criminal Division)
        
        Queen's Bench Division
        
        Crown Court
        
        Magistrates Court
- - - - People know what the law is and now how their case will go
      - Allows lawyer to advise clients
      - Allows people to operate their businesses knowing the arrangements are recognised by law
      - HL noted this in the PS 1966
    - - Similar cases must be decided similarly so the rules apply to all equally
      - Law must be consistent to be credible
    - - Principles of law are set out in the cases, so it allows the law to be clear an accurate
      - Gradually builds up a lot of circumstances in which to apply
      - Parliament does not always go into detail
    - - There is room for change due to the PS
      - Distinguishing
    - - Where a principle has been established, a case is unlikely to go any further in the court system
  - - - The fact that al lower court have to follow those above and the CoA has to follow itself leads to inflexibility and forces appeals
      - Bad descions may be reapplied, so may have injustice
      - Few cases gain leave to go to the SC
      - Change in law only happens if the parties have the persistence
    - - Nearly 1/2 million reported cases so hard to find the law
      - Judgements are often very long w/ no distinction between comments and ratio decidenti
    - - Use of distinguishing can lead to hair-splitting descions so some areas of law become very complex
      - Differences between cases very small
    - - judges are well aware of places for reform but cannot do anything until a case comes forward
      - This is one of the criticisms of the CoA following its past descions as only 50 cases go to the SC per year
      - There may be a long wait for needed cases to go to the SC