Types of Precedent
Original - [Donoghue v Stevenson] 1932
- Courts lower in hierarchy - [R v R] 1991, HOL agreed with COA that a man can be guilty of ****** his wife.
- Decisions of Privy Council - Isn't part of the hierarchy but as many judges are also members of the Supreme Court, judgements are respected and may be followed.
[Holley] 2005 - The Privy Council judged that in defence of provocation the defendant was judged to have ordinary powers of self control. COA followed this decision in cases in 2005 and 2006.
- Obiter Dicta Statements - In [Howe] 1987 the obiter statement said that duress is not a defence to attempted murder and it was used in [Gotts] 1992.
- Dissenting judgements - The disagreeing judge explains his reasoning and courts may agree and follow this reasoning instead but do not have to.
- Decisions in other countries - When another country uses the same ideas of common law as the UK, their decisions may be followed. E.g. Canada, Australia, New Zealand.
Things Judges can do with precedents?
Follow - to apply the same legal principle from an earlier case to a present case because the material facts are sufficiently similar.
Reverse - Here, a court higher up in the hierarchy overturns a decision of a lower court in the same case. Example: [Royal College of Nursing v DPP] 1981. High Court said that a nurse is covered by 'medical registered practitioner', then COA reversed this and said that nurses aren't, then the HOL reversed COA decision and said that nurses were 'medical registered practitioners'.
Overruling - Court in a later case states that the legal rule decided on in an earlier case was wrong. May occur when a higher court overrules a decision made in a lower court. Example: [BRB v Herrington] 1972 overruled [Addie v Dumbreck] 1929 so that now an owner of land does owe a duty of care to a tresspasser.
Dsitinguishing - Means judges can avoid precedent by making out the material facts of the case to be significantly different so a distinction can be made. Example: [Merit v Merit] 1971 was distinguished from [Balfour v Balfour] 1919 as merit was a written agreement rather than a domestic arrangement, so Merit had a legally binding contract.
History of Supreme Court
Prior to 1898 - the HOL could overrule past decisions as it gave a more flexible approach, allowed for mistakes and gave justice.
In 1898 - In [London Street Tramways] it was decided that the HOL couldn't overrule past decisions and were bound by them unless the decision was made 'per incuriam' (in error)
1966 - HOL were no longer boung by previous decisions due to the Practice Statement 1966. This is because rigid decisions meant that the law could not easily develop and the HOL needed a flexible approach to develop the law to meet changing social conditions.
Advantages of Practice Statement:
- Develops the law, is flexible.
- Too rigid law leads to individual injustice and Practice Statement stops this.
- Doesn't give certainty/consistency regarding criminal law.
- May disturb/unsettle the law.
Use of Practice Statement?
- 1968 - First use in the case of [Conway v Rimmer] however was not an important case and did not involve criminal law.
- 1972 - [Herrington v BRB] overruled [Addie v Dumbreck] 1929. It was the first major use of the Practice statement and was about a duty of care owed to a child tresspasser. Social and physical conditions had changed so the practice statement was used.
- 1972 - [Jones] - Earlier decision in the case of [Dowling] 1967 was wrong but the HOL refused to overrule it as they preferred certainty in the law rather than injustices.
- 1976 - [Miliangos] 1976 overruled [Havana Railways] 1960 as economic changes had taken place therefore it would be unfair to keep the ruling. Regarding a contract that stated that payments had to be made in sterling, however changes in exchange rates lead to a great reduction in the value of sterling over the Swiss Franc.
- 1986 (20 years after statement) - [Shivpuri] 1986 overruled [Anderton v Ryan] 1985 - Overruled after one year which shows a serious error in judgement. Took 20 years before the practice statement was used for a criminal case. HOL believed that the previous decision in [Anderton] would distort criminal law if the decision was not corrected in [Shivpuri].
- 1993 - [Pepper v Hart] overruled [Davis v Johnson] 1979 - relaxed the ban on hansard.
- 1991 - [R v R] 1991 overruled [R v Miller] - Overruled [Caldwell] as womens status in society had changed and women are now equal in marriage so the law was outdated. Husband can no longer have unconsenting sex with wife.
- 2003 - [R v R and G] overruled [Caldwell] 1982 - person only reckless if knew damage. Only used twice since Practice Statement was introduced in criminal cases.
Criticisms of Practice Statement?
- First use was in 1968, even though it concerned a technical point relating to discovery of documents. [Conway v Rimmer]
- First major use was in [Herrington] 1972 in recognition of changing social and physical conditions.
- Early reluctance was seen in the cases of [Knuller v DPP] 1973 and [Jones] 1972.
- In 1976 the HOL were prepared to use it in a case of ocntract law despite the warning of caution in this area [Miliangos v George Frank Textiles] 1976.
- 20 years before it was used for the first criminal case of [Shivpuri] 1986 and even then it was only because it would distort all criminal law if not used.
- From 1966-1980 the HOL had 29 opportunities to overrule, but only overruled in 8 cases.
- The case of [Pepper v Hart] 1993 the Practice Statement was used despite there being major constitutional implications.
- Reviewing the Practice Statement's cases, the likely influences for change include changing social and economic climate, justice in individual cases, propoer development of the law and the special need for certainty in criminal cases.
Court of Appeal and its own decisions?
COA can depart from its own decisions but in limited circumstances (exceptions allowed by the case of [Young v Bristol Aeroplanes LTD] 1944)
RULE 1 - Decisions by one division of COA will not bind the other division.
RULE 2 - Within each division, decisions are normally binding, especially for Civil Division.
- Where there are conflicting decisions in past cases, the court can choose which one they wish to follow, e.g. [Farley v Skinner] 2000 concerning a breach of contract.
- Where there is a decision of the Supreme Court that overrules a COA decision, the COA must follow the supreme court decision.
- Where a decision was made 'per incuriam'.E.g. in [William v Fawcett] 1986 the courts refused to follow previous decision because there had been a misunderstanding of the county court rule.
Also the criminal division can refuse to follow a past decision if the law has been misapplied/misinterpretted. This is because criminal law involves peoples liberties, as recognised in the case of [R v Taylor] 1950.
COA can also refuse to follow decision of HOL if made before HRA [Mendoza] 2002 case.
Should COA be bound by Supreme Court?
- Gives certainty in the law. (consistent and fair)
- It is precise as the facts and principles of law build up before the courts.
- Gives flexibility as there is room for the law to change in the Supreme Court.
- Saves time - when a principle of law has been established, cases with similar facts are unlikely to go through the lengthy process of litigation.
- If the COA wasnt count there would be 2 conflicting precedents for lower courts to follow.
- Its too rigid, bad decisions may be perpetuated.
- Complexity - it isnt always easy to find the relevant cases, for example in [Dodd]'s case 1973, the COA could not find the ratio decidendi.
- Illogical distinctions - The use of distinguishing to avoid past decisions can lead to 'hair splitting' in some areas of law so they have become very complex.
- Few cases are heard by the supreme court so the court of appeal may be the last stage, e.g. in [Davis v Johnson 1979] a pervious case decided that women could not evict a man from the home when he was the owner. To get this to the supreme court it would take months and women suffering from domestic abuse were unprotected in the mean time.
Importance of Judge Made Law.
- Murder isnt an act of parliament, its is common law.
- Until 1957 the mental element of murder was the intention to kill. In the case of [Vickers] 1957 the HOL extended this rule to cover the intention to kill and cause GBH to widen ability to convict people of murder.
- In the case of [R v R] 1991 the HOL decided that it was no longer acceptable in modern society for a man to have unconsenting sex with his wife.
Civil Law -
- In the case of [Donoghue v Stevenson] 1932 the HOL created the law of negligence 'a duty of care to others'.
- This means that now people can sue other people/companies that are proved in court to be negligent towards them, e.g. compensation for injury or loss.
Should judges make law?
- If a case hasn't been decided before as there is no law regarding the case, judges must make a decision.
- Law must develop so judges overrule past decisions and outdated outcomes, e,.g. [R v R] 1991 overruled [Miller] 1954.
- Means the law will not stagnate and can develop to changing social, economic and physical conditions.
- Judges are non-elected and therefore it is undemocratic.
- Doesn't support the seperation of powers.
- Gives more certainty in the law as judges only apply law, rather than make it.
Advantages of Precedent?
- Certainty - allows people to know what the law is and how it will be applied. Allows business and financial arrangements to know they are recognised within law.
- Consistency and fairness - similar cases should be decided in a similar way so they apply equally. Laws must be consistent to be credible.
- Precision - Means law is well illustrated and gradually builds up through various facts in cases before the courts.
- Flexibility - Gives law room to develop so it does not stagnate. Means cases can be distinguished and supreme court can overrule its previous decisions, e.g. [Shivpuri] 1986 overruled [Anderton v Ryan] 1985.
- Time saving - where a principle of law has been established, cases with similar facts are unlikely to go through the lengthy process of litigation.
Disadvantages of Judicial Precedent?
- Rigidity - Can make law inflexible and past bad decisions may be perpetuated. Change can only take place if parties have courage, persistance and money to appeal to the higher courts.
- Complexity - It is not always easy to find the relevant case law, and judgements may not always be clear as seen in [Dodds] case 1973, where they couldn't find the Ratio Decidendi.
- Illogical Distinctions - The use of distinguishing to avoid precedent has lead to 'hair splitting' so some areas of law become very complex. Differences may be very small and illogical and hard to follow.
- Slowness of Growth - Law cannot be reformed unless there is a case before the courts to be decided. The COA should be able to depart from previous decisions as to develop the law as they get 2000-7000 cases per year, whereas the supreme court only get 50-70. Also the supreme court relies on cases of 'general public importance' which means many important cases are not heard just because they are not publically important.