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  1. 1. JUDICIAL PRECEDENT REVISION NOTES The Doctrine • Stare Decisis – ‘stand by what has been decided and do not unsettle the established’. • Supports idea of fairness & provides certainty. • Where past decisions of judges creates law for future judges to follow. Higher courts bind lower courts and in some cases themselves. • Created by the ratio decidendi • Referred to as ‘case law’. • Cases which illustrate stare decisis – Knuller v DPP and Jones v Secretary of State for Social Services (where despite regarding an earlier decision as wrong, refused to overrule using the practice statement, preferring certainty) • Accurate law reporting is essential for stare decisis to operate • Stare decisis can be avoided by distinguishing, overruling and reversing Typical Exam Question: “Describe the concept of stare decisis using the source and cases to illustrate your answer.” Ratio Decidendi • Principles of law used to decide a case – ‘reason for deciding’. • Sir Rupert Cross: ‘any rule expressly or impliedly treated by the judge as a necessary step in reaching his conclusion’. • The part of the decision that forms the precedent for future cases to follow. Obiter Dicta • The remainder of the judgement. ‘Other things said’. • Judge in future cases does not have to follow but may be persuasive (Howe & Gotts) Problems • Separating the ratio and obiter • More than one speech at the end of the case with different reasons for decisions (rationes decidendi) Types of Precedent • Original o if point of law which has never been decided forms new precedent o Judge may look at cases which are closest in principle and use similar rules (reasoning by analogy) o Here, the judge has a law making role (creating new law). o Cases: Hunter and Others v Canary Wharf Ltd and London Docklands Development Corporation (1995)
  2. 2. • Binding o Precedent from an earlier case which must be followed even id the judge in the later case doesn’t agree with the legal principle. o Only created where facts are sufficiently similar and when decision was made by a court which is senior to (or in some cases the same level). • Persuasive o Precedent that isn’t binding on the court but the judge may consider it and decide it is the correct principle and is persuaded to follow it. Courts Lower in the Hierarchy:  R v R (1991) – the H of L agreed with and followed the same reasoning of the C of A when deciding that a man could be guilty of raping his wife. Decisions of the Privy Council  since many of its judges are also members of the H of L’s, their judgements are treated with respect any may often be followed.  A-G for Jersey v Holley (2005) (PC) followed in R v James; R v Karimi (2006) by the C of A instead of following a H of L precedent. Statements made Obiter  R v Gotts (1992) – CA followed obiter of HL in R v Howe(1987) A dissenting judgement • Hedley Byrne v Heller & Partners followed dissenting judgements in Candler v Crane Christmas & Co (1951). Decisions made by courts in other countries: • Re A (2000) Conjoined Twins; Re S Refusal of Medical treatment • American precedent
  3. 3. Typical Exam Question: “the source refers to ‘persuasive precedent’. Using the Source and other cases, describe how persuasive precedent works.” Hierarchy of courts COURT COURTS BOUND BY IT COURTS IT MUST FOLLOW ECJ All courts None HL All courts in the ELS ECJ CA Itself (with some ECJ & HL exceptions) DC & all other lower courts DC Itself (with some ECJ, HL, CA exceptions); HC & all other lower courts HC County Court; Mags ECJ; HL; CA; DC CC Possibly Mags All Higher Courts MC None All Higher Courts House of Lords & Precedent  court has the flexibility to refuse to follow an earlier case when ‘it appears right to do so’.  phrase very vague and gives little guidance as to when they should overrule a past decision.  The house has been reluctant to use the power, especially in the first few years. (Knuller v DPP; Jones v Secretary of State.)
  4. 4. Reluctance More willingness to use Criminal Law Recent Use PS use Conway v Rimmer (1968) Miliangos v George R v Howe R v R and G (2003) Frank (Textiles Ltd) (1987) Herrington v British Railways Board Horton v Sadler and (1972) Murphy v Brentwood R v Shivpuri another (2006) District Council (1990) (1986) Jones v Secretary of State for Social A v Hoare (2008) Services (1972) Pepper v Hart (1993) Knuller v DPP (1973) The Court of Appeal & Precedent Decisions of the Courts above it: The CA binds Itself (with exceptions) and is bound by the HL and ECJ. Can depart from HL decision in human rights cases where it is different from the decisions of the ECHR Lord Denning: an avid champion of the view that the CA should not be bound by the decisions of the HL. ( Broome v Cassell & Co Ltd (1971) LD refused to follow the HL in Rookes v Barnard (1964) Schorsch Meier GmbH v Henning (1975) and Miliangos v George Frank (Textiles) Ltd (1976) the CA refused to follow HL in Havana Railways (1961) which said that damages could only be awarded in sterling. On appeal to the Lords they pointed out that the CA had no right to ignore overrule decisions of the HL. However the HL then went on to use the Practice Statement to overrule its own decision agreeing with the reasoning of Lord Denning. Reasons for Reasons Against • Cases could be decided on their own merits • It would make the law less certain as CA making judgments more equitable; could overrule HLs; • The law would potentially move more with changing social conditions; • It would make advice given by lawyers • It would be quicker to change incorrect less precise; decisions; • It would make the law less rigid; • It may cause an increase in litigation; • Avoids costly and lengthy appeals to update the law to the HL’s • Courts would be confused over which • Very few cases reach the HL’s precedent to follow.
  5. 5. CA & Its own decisions  One division of the CA will not bind the other  Within each division, decisions are normally binding.  Young v Bristol Aeroplane Co Ltd (1944) – although there are limited exceptions.  conflicting decisions in past CA cases - can choose  a decision of the HL which effectively overrules a CA decision - CA must follow the decision of the HL  decision was made per incuriam  Denning tried to challenge the rule in Young’s case but in Davis v Johnson the court “expressly, unequivocally and unanimously reaffirmed the rule in Young”.  Justifications: there would be a risk of confusion and doubt if the CA was not obliged to follow its own past decisions. Although the HL’s needs power to review as it is the last court of appeal, the CA does not as their errors can be corrected by the HL’s. Per incurium case examples: Williams v 5awcett (1986); Rickard v Rickard (1989) ‘rare and exceptional cases’ that the CA would be justified in refusing to follow a previous decision. Criminal Division  Can also refuse to follow a past decision if the law has been ‘misapplied or misunderstood’.  because people’s liberty is at stake, R v Spencer (1985) Typical Exam Questions: “Using the source and other cases, describe the powers of the Court of Appeal” “Discuss whether or not the powers of the Court of Appeal within the doctrine of precedent should be extended”. The Privy Council & Precedent • Decisions not usually binding but form persuasive precedent. • Usually follow decisions of the HL except where the point of law has developed differently in the country from which the appeal has come. • Unusual case = A-G for Jersey v Holley – PC refused to follow HL’s decision in Smith (Morgan James). CA in ELS then followed Holley rather than Smith because the decision was made by 6 law lords.
  6. 6. Typical Exam Questions Consider each of the following situations and explain how the doctrine of precedent will apply. Give case examples where necessary. (i) A case comes before the House of Lords in 2008. There is a previous precedent decided by the House of Lords in 1951. [5 marks] (ii) A case comes before the Court of Appeal (Civil Division) in 2008. There is a previous decision by the House of Lords in 1980. [5 marks] (iii) A case comes before the Court of Appeal (Civil Division). There are two past conflicting precedents, one from the House of Lords in 1995 and the second from the Privy Council decided in 1999. [5 marks] Consider each of the following situations and explain whether or not the Court of Appeal can depart from the previous decision. Give case examples where necessary. (i) A case concerning a death resulting from medical negligence was heard by the Court of Appeal (Civil Division). A year later, a similar issue is being heard by the Court of Appeal (Criminal Division). [5 marks] (ii) A case concerning breach of contract was decided by the Court of Appeal (Civil Division). Days later a similar issue is heard by the same court but the judges now feel that the decision should be different. [5 marks} (iii) A case concerning murder was decided by the House of Lords. The Court of Appeal (Criminal Division) believes the decision of the House of Lords is out of date. [5 marks] In the case of Herrington v British Railways Board (1972) the House of Lords decided to overrule the decision that they had made years earlier in the case of Addie v Dumbreck (1929). Consider how the doctrine of precedent would apply had the cases of Herrington v British Railways Board and Addie v Dumbreck been heard in the following situations and on the following dates instead of when they were actually heard. (i) Addie v Dumbreck was decided by the House of Lords in 1950. Herrington v British Railways Board comes before the House of Lords in 1951. [5 marks] (ii) Addie v Dumbreck was decided by the House of Lords in 1950. Herrington v British Railways Board comes before the House of Lords in 1967 [5 marks] (iii) Addie v Dumbreck was decided by the Court of Appeal (Civil Division) in 1950. Herrington v British Railways Board comes before the Court of Appeal (Criminal Division) in 2006 [5 marks]
  7. 7. Ways of avoiding Precedent Distinguishing: The judge finds that the material facts of the case are sufficiently different for him to make a distinction between the case he/she is hearing and the past one. – He is then not bound to follow it. Balfour v Balfour (1919) & Merritt v Merrit (1971) Overruling: The court in a later case states that the legal rule in an earlier case is wrong. It may happen when: ◦ A higher court overrules a decision made in an earlier case by a lower court ◦ The ECJ overrules a past decision it has made ◦ The HL’s use the practice statement to overrule a past decision of its own. Pepper v Hart (1993) overruling Davis v Johnson (1979) Reversing: A court higher up the hierarchy overturns the decision of a lower court on appeal in the same case. E.g. the CA disagrees with a ruling of the high court/crown court and reverses their decision by coming to a different view of the law. Typical Exam Questions: Explain with method of avoidance is most suited to each of the scenarios below. Illustrate your answer where appropriate. (i) The House of Lords with to depart from a past decision of their own. [5 marks] (ii) On appeal, the Court of Appeal disagrees with a ruling of the High Court and wishes to replace it with a different decision. [5 marks] (iii) A judge in the Crown Court does not wish to follow a past precedent of a higher court as she feels that the facts are slightly different. [5 marks] “Using the source and other cases, explain how lower courts can avoid the doctrine of precedent.” “Discuss the advantages and disadvantages of giving the lower courts more flexibility in avoiding the doctrine of precedent.”
  8. 8. Judicial Law Making It is well recognised now that judges do use precedent to create and extend law. Some areas of law owe their very existence to decisions by the judges. Law of Contract: Nearly all the main rules come from decided cases. Many were made in the 19th century but still affect the law today Tort of Negligence: Developed & refined by case law. Donoghue v Stevenson (1932) is an important starting point in its creation of the ‘neighbour principle’. Alcock v Chief Constable of south Yorkshire (1991) involving claims by people who lost relatives in the Hillsborough disaster, laid down the guidelines for liability for nervous shock where there has been negligence. Criminal Law: Judges have played a major role in developing the law on intention. (Moloney; Hancock & Shankland; Nedrick; Woolin); It is only because of judicial decisions that intention for muder included intent to cause GCH as well as intent to kill. Judicial decisions have created new crimes. Shaw v DPP created the offence of conspiracy to corrupt public morals. R v R decided that rape within marriage could be a crime. But there have been occasions where the HL’s have refused to change the law saying that it was Parliaments job. (C v DPP which involved the age of criminal responsibility.) Advantages & Disadvantages of Precedent ADVANTAGES DISADVANTAGES Certainty Rigidity Consistency & fairness in the law Complexity Precision Illogical Distinctions Flexibility Slowness of Growth Time Saving Typical Exam Question “What effect would the abolition of the doctrine of binding precedent have on the legal system?”
  9. 9. Law Reporting On order to follow past decisions there must be an accurate record of what those decisions were. First records 1275-1535 (year books); 1535-1865 individuals made a business of selling reports to lawyers but they lacked accuracy and detail; 1865 Incorporated Law Council of Law Reporting was set up and controlled by the courts. Reports became accurate and reliable which helped in the development of the strict doctrine of precedent. These still exist and are published according to the court that the case took place in. Also now there are other well established reports: All ER; WLR; Newspapers and journals.