Chapter 6: Judicial Precedent (6.3 The Supreme Court (formerly the House…
Chapter 6: Judicial Precedent
6.2 The hierarchy of the courts
6.2.1 Appellate Courts
Appeal Court - this is where only the law is appealed and not certain cases, they usually follow their own decisions although they court of appeal where they are more flexible
This court is not bound by its past decisions, although it will generally follow them. It however binds every court underneath it in the hierarchy.
There are three divisional courts the Queen's Bench, Chancery and Family and they are all bound by the decisions of the supreme court and court of appeal, and they are also bound by their own past decisions.
Court of Appeal
This has two divisions civil and criminal. They are bound to follow the decisions of the Supreme Court. In addition they must usually must follow their own decisions. Although there are limited exceptions to this rule.
6.2.2 Courts of the first instance
This is bound by all the decisions above them and binds the courts below them. High Court judges do not have to follow each others decisions but usually do so.
These are the Crown Court, the County Court and the Magistrates Court they are bound by the courts above them and they bind the courts below each other but it is unlikely that a decision by an inferior court will make precedent.
6.8 Advantages and disadvantages of precedent
People know what the law is and how it is likely to be applied to their case.
Consistency and the fairness in law
It is seen as just and fair similar cases should be decided in similar ways - the law must be consistent if it is going to be creditable.
As the law is set out in actual cases the law becomes very precise.
There is room for the law to change as the Supreme Court can use the practise statement to overrule cases.
When a principle has been established cases with similar facts are unlikely to go through the lengthy process of litigation.
because the lower courts have to follow decisions of the higher court and that the court of appeal have to follow their own past decisions means that the law can be too inflexible. An added problem is that not many cases go to the Supreme Court.
as there are lots of cases it is very hard to find all the relevant cases. Another problem
The use of distinguishing to avoid past decisions can lead to hair splitting so that some areas of the law have become very complex and they mean seem illogical.
Slowness of growth
Judges cannot make decisions on law that does need reforming without a case.
6.3 The Supreme Court (formerly the House of Lords until 2009 using the Constitutional reform act 2005)
London Street Tramways v London County Council
House of Lords decide they are bound by their own previous decisions.
House of Lords will depart from their own previous decisions when 'it is right to do so'.
Conway v Rimmer
First use of Practise Statement - only involved technical law on discovery of documents.
Herrington v British Railways Board
First use of Practise Statement on the duty of care owed to a child trespasser.
Knuller v DPP
Certainty in law was important and would not always use the Practice Statement.
R v Shivpuri
First use of Practise Statement in criminal law.
Pepper v Hart
Practise Statement allows courts to look at hansard for the purpose of statutory interpretation.
R v G and R
Practise Statement used to overrule the decision in
on recklessness in criminal law.
Austin v London Borough of Southwark
Supreme Court states that the Practise Statement applies to it.
6.1 The doctrine of precedent
6.1.1 Original precedent
A decision on a point of law that has never been deceasing before.
6.1.2 Binding precedent
A decision in an earlier case which must be following in later cases.
Following the decisions of previous cases, especially of higher courts.
6.1.3 Persuasive precedent
A decision which does not have to be followed by later cases, but which a judge may decide to follow.
Dissenting judgement - a judgement given by a judge who disagrees with the reasoning of the majority of judges in the case.
Doctrine - following decisions - set principles by dicey
6.4 The Court of Appeal
6.4.1 Decisions of courts above the Court of Appeal
Both divisions are bound by the Court of justice European Union and the House of Lords (Supreme Court).
6.4.2 The Court of Appeal and its own decisions
The decisions made by one division will not bind the other division, however within each division the decisions are usually binding. This is especially true for the civil division - this rule comes from
Young v Bristol Aeroplane
where the only exceptions allowed by that case are -
Where there are conflicting decisions in past Court of Appeal cases which means the court can choose which one they want to follow.
Where there is a decision in the Supreme Court which effectively overrules a Court of Appeal decision which they must follow.
Where the decision was made per incuriam, that is careless or by mistake because a relevant act of parliament or regulation has not been considered by the court.
6.4.3 The Court of Appeal (Criminal Division)
Also uses the exceptions from
can also refuse to follow a past decision if it has been misapplied or misunderstood this is added as peoples liberty is at stake -
R v Gould
6.6 The operations of precedent
Where there is a previous precedent and the judge in the present case should follow it.
A decision which states that a legal rule in an earlier case was wrong.
A method by which a judge avoids having to follow what would otherwise be a binding precedent.
6.5.1 Stare decisis
Means 'stand by what has been decided and do not unsettle the established'. It is the foundation of judicial precedent.
6.5.2 Ratio decidendi
The reason for the decision. This forms a precedent for future cases.
6.5.3 Obiter dicta
Means 'other things said'. So it is all the rest of the judgement apart from ratio decidendi. Judges in future cases do not have to follow it.