Judicial Precedent; How can we depart from it?

Judicial Precedent is a legal rule established by the ratio decidendi of a Judgement. This forms a precedent to be identified in future cases, of which there are two types; persuasive and binding. Persuasive precedent is where a court may choose to apply it but is not necessarily obliged too. An example of this may be a decision made in court of lesser or equal standing, or courts outside the jurisdiction and statements made as obiter dicta within a Judgement. Binding precedent, or stare decisis , has been described as; ‘one of the oldest and most fundamental features of the English Legal System’ with Walker and Ward considering it the ‘cornerstone’ of the English Legal System . The concept of ‘justice’ dictates that two characteristically similar cases need to be treated the same for fear of the perception that one has received preferential treatment. Gifford and Salter point out that, ‘it may be better to have certainty in law than to engage in the pursuit of perfecting it’ even if a decision is questionable and criticised both academically and professionally. Lord Halisham in Broome tends to agree, asserting that ‘some degree of certainty is at least as valuable a part of justice as perfection’ .

Before the Norman Conquest different areas of the country where governed by different laws, usually adapting when different settlers invaded the area. William the Conqueror gained the throne in 1066 and established a strong central government in a hope to standardise the law. Representatives of the King checked local administration and laws which were fed back to Westminster, they underwent discussion to sift out the unreasonable ones and thus a consistent body of rules was formed . The principle stare decisis (let the decision stand), was born and grew to provide a more predictable law by following previous decisions. By about 1250 a common law, or modernly known as case law, was produced and used consistently across the land even to this day. A hierarchy of precedent grew with the common law, much in line with the modern court hierarchy system used today .

As we are members of the European Union, the European Court of Justice binds all courts in the English Legal system as well as the domestic courts within its other member states . The Supreme Court, formerly House of Lords, binds all the domestic courts below it such as, Court of Appeal, County Courts, Crown and Magistrates . When faced with a case where an earlier decision appears to relevant, the Judge can do any of the following; (1) follow the earlier precedent if the facts are similar; (2) distinguish the facts of the present case from the earlier precedent; (3) overrule the earlier decision if the decision was made within a lower court and they disagree with the Judgement. This is used sparingly as it weakens the authority of the lower courts; and (4) reverse a decision of a lower court if the case is appealed to a higher court and they feel the lower court wrongly interpreted the law.

Gavel and Books Until 1966 when Lord Gardiner introduced the Practice Statement , reading that he and other Lords of Appeal would ‘in future consider itself free to depart from its own previous decisions’, the House of Lords was bound by its own previous decisions as established in London Tramways except where a decision had been made per incuriam (through lack of care). Although this ‘freedom’ is used sparingly . In Jones the House of Lords chose not to depart from their previous decision in Dowling despite four of the seven Lords hearing the case thought the decision in Dowling was wrong. Three of the four thought the decision should be departed but the others disagreed. Lord Diplock, in favour of departing, stated ‘although Dowling was a recent decision he saw no greater reason for perpetuating recent error than for leaving ancient error uncorrected’ . All four Judges who chose not to depart from Dowling were in agreement; they could not depart until a broader issue was at stake. This is supported by Zander, who quotes Professor J. W. Harris’ assertion that precedent should be followed, “unless…the issue at stake is so fundamental that it is the appellate Judge’s duty to enforce his own view” . Lord Reid quite rightly pointed out; if a majority of six to five in the first appeal could be overruled by the majority preferring a different decision in the second, there was no reason why a third appeal could not restore the original decision; thus, “finality of decision would be utterly lost” . However, Professor B.V. Harris’ countered these views with the opinion that doing justice in the case at hand should outweigh the values embodied within stare decisis . While both arguments have merits, it would seem that should Professor Harris’ opinion be adopted, a policy to this effect would mean Judges would always be given the opportunity to distinguish the present case from the relevant precedent given that no two cases are exactly the same. While this would be a benefit to the party of the case, the uncertainty it would cause for everyone else could not be considered an acceptable consequence as it would be non-existent.

Despite the alluded reluctance to depart, there have been occasions where the House of Lords decided it should depart a previous decision. It was found in the years between 1966 and 1980 the House of Lords had the opportunity to overrule their own decision in twenty-nine cases but only doing so on eight occasions . Shivpuri overruled a decision made only a year prior in Anderton as it deemed the interpretation of the Criminal Attempts Act 1981 in that case had ‘virtually emasculated the Act’ . Interestingly, Lord Bridge States; “if a serious error embodied in a decision of this house has distorted the law, the sooner it is corrected the better” . This view contrasts with that in Kansal when the House of Lords refused to depart from its verdict in Lambert on the grounds it would not depart from such a recent decision, despite agreeing the reasoning in Lambert was incorrect .

While the House of Lords is the Supreme Judicial Authority in the English Legal System, Twining and Miers argue that the Court of Appeal is more significant on the grounds it hears more cases than the House of Lords and generally, for many reasons, including financial, the Court of Appeal is the ‘last resort from most appellate cases’ . In 1997, the House of Lords heard 83 cases while the Court of Appeal heard 1,225. Young established the Court of Appeal was bound by its previous decisions except in three circumstances: (1) where there are two conflicting decisions it may choose which to follow; (2) when a ruling of the Court of Appeal, though not overruled, does not stand with a later ruling of the House of Lords; (3) where it is satisfied that an earlier decision was given per incuriam .

There are other exceptions to the rule apart from the three given above, Manchester et al identify the case of Rickards where the Court of Appeal held if a case was wrongly decided and the Court of Appeal was the final appellate court (no review by House of Lords possible) they could depart from a previous decision even if it did not fall within the category of a decision reached per incuriam . They also highlight Brent where the Court of Appeal held a proposition of law which was a part of the ratio decidendi of a previous decision which was assumed to be correct but had not been argued or considered before the court they were to depart from the decision.

There has been occasion when the Court of Appeal identified a binding precedent from the House of Lords but chose to depart from it. Lord Denning, in giving Judgement in Schorsch Meir GmbH ruled that the Judgement in an English court could be given in a currency other than sterling overruling the House of Lord’s decision in Havana Railway on the grounds that cessante ratione cessat ispa les (when the reason for the rule lapses). Although this case didn’t go to the House of Lords on those grounds the same issue arose in Miliangos . Lord Cross took the opportunity to assert the House of Lord’s authority issuing a sharp rebuke to Lord Denning, stating, ‘it is not for any inferior court – be it a country court or a division of the Court of Appeal presided over by Lord Denning – to review decisions of the house’ .

A common theme is that the common law provides certainty and a detailed set of rules in response to real situations as opposed to statues which are hypotheses. If Judicial Precedent is followed people are able to live within a set of rules and guidelines and know when they are doing wrong. Hayek has argued that case law should be the main source of law as it developing in line with market forces; if the ratio in a case doesn’t work it can be abandoned, if it does work it will be followed . The law can constantly develop adding to its flexible nature meaning it’s able to meet the demands of an evolving society at a much quicker pace than Parliament is able to legislate appropriately , the most radical of which would be the Practice Statement of 1966 .

The complexity and volume of cases can prove difficult as there are so many cases to choose from with more being added daily. With technological advances almost every case is readily available online and at a faster rate than they were previously . Judgements are long and sometimes the ratio can get lost within irrelevant material making it difficult to pinpoint the relevant principles. A solution to this may be to follow a more concise European system where courts give a single Judgement with no dissenting Judgements . However this can prove problematic as the decisions can be so specific that lawyers are required to carry out considerable research around specific words to unearth the legal impact as no explanation is provided. The rules of Judicial Precedent are detrimental to themselves insofar as Judges need to follow a binding precedent despite think it is bad law or inappropriate. They could be following this law for quite some time before a court high enough has the power to overrule . This could also lead to illogical distinctions. A Judge may distinguish between scrupulous facts in order to distinguish a case resulting in lots of precedents for similar facts which only further complicates the law. This complication could lead to unpredictability as it may be impossible to establish which precedent should be applied to a given case. The law can only develop based on the facts of a case brought before it, important changes may not happen unless someone has the money or determination to push forward a case .

In conclusion, Judicial Precedent is a fundamental factor of the English Legal System. It allows the law to constantly evolve and develop with the changing times, meeting the needs of its citizens whilst providing a framework of rules and regulations to live within. While Judicial Precedent has come under some scrutiny it appears the general consensus is one that the benefits far outweigh the consequences.

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About ambaroyle

Full time LJMU Law student. View all posts by ambaroyle

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