Transcript Supreme Decision

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 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).
• 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.
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 V
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])
• 1966 - 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
Advantages and Disadvantages
 just system
 impartial system
 practical rules
 certainty
 flexibility
 developments contingent on accidents of litigation
 Retrospective effect – SW v UK (1996); R v C (2004)
 Complex
 Rigid
 Undemocratic
Law LA1: Precedent
Should Judges Make Law?
• 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)
Law LA1: Precedent
Test Questions
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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
Useful Websites
1. For information of the judicial work and judgements of the House of Lords, visit
http://www.publications.parliament.uk/pa/ld/ldjudgmt.htm
2. For information on the judicial work of the Privy Council, visit
http://www.privycouncil.gov.uk
3. For information on the court system generally, access to judgements from
various courts, and other useful links, visit www.hmcourts-service.gov.uk
Law LA1: Precedent