Outline and briefly explain the court structure.
European Court of Justice
It is necessary for there to be a settled court hierarchy as judges need to know what judicial precedents they are bound to follow.
Since 1973, the European Court of Justice has been the highest court affecting our legal system. A decision made by the ECJ is binding on all courts in the European Union, including those of the United Kingdom United Kingdom
The House of Lords is the senior national court and its decisions bind all other courts in the English legal system. Until 1966, the HL regarded itself as bound by its own previous decisions, unless the decision was made per incuriam (‘through lack of care’). However, Practice Statement 1966 stated that the HL in future would be free to depart from its own previous decision “where it appears right to do so”. However, this freedom is used sparingly so as to maintain certainty and consistency in decisions. Pepper v Hart (1993) overruled David v Johnson (1979).
The Court of Appeal (CA) is directly below the House of Lords in the court structure. It is divided into two divisions, the Civil Division and the Criminal Division. As a general rule, the Court of Appeal is bound by its own previous decisions with some limited exceptions to this rule. The Criminal Division is permitted to be more flexible where the decision involves the liberty of the defendant.
The High Court contains three separate appeal courts: The Queen’s Bench, Chancery, and Family. All three are bound by decision of the Court of Appeal. The House of Lords and the European Court of Justice. The Divisional Courts, with a few exceptions, are bound by their own decisions.
The Crown Court, the County Court and the Magistrates’ Court are described as inferior courts. This is because they are bound to follow decisions made by all higher courts. In addition, it is unlikely that a decision made by an inferior court can create binding precedent. In theory, the Crown Court can set precedent for the Magistrates’ Court on a point of law; however, since such decisions are hardly ever recorded they have little practical effect.
6. Discuss the advantages and disadvantages of the system of precedent.
Advantages
The system of judicial precedent has several advantages, including certainty, consistency and fairness, precision and flexibility.
Precedent provides certainty because the courts must follow decisions made in previous similar cases. Precedents are established by the ratio decidendi and explained in the obiter dicta. This means people know what the law is and how it is likely to be applied in their case. For example, a lawyer can advise his client about the likely outcome of his case, based on the knowledge of precedent in similar cases. It also allows people in business to make financial and other arrangements secure they will be recognised and supported by the law. The Practice Statement 1966 reminds us how important certainty is in the law.
Precedent provides consistency and fairness because defendants know they will receive the same treatment no matter where their case is heard or who is hearing the case. As in sport, the rules of law will be applied equally to both sides. Precedent also means that judges cannot make random or arbitrary decisions because judges are bound to apply binding precedent in similar cases.
However, judges also have considerable flexibility in avoiding precedent by distinguishing, overruling and reversing. For example, the House of Lords can now use the Practice Statement 1966 to change the law when necessary; for example, Pepper v Hart (1993) overruled and replaced Davis
Precedent provides precision in law-making. As new precedents are established, English case law becomes more and more precise. For example, the judge was able to distinguish between Balfour v Balfour (1919) and Merritt v Merritt (1971), so that we new have precedents appropriate to cases similar in the material facts to these cases.
Disadvantages
The system of judicial precedent has several disadvantages, including rigidity, complexity and slowness of growth.
Although judges can avoid precedent by distinguishing, reversing, and overruling, there is still a degree of rigidity or inflexibility in the system. For example, although Crown Courts hear very serious cases, they cannot create binding precedent. This means too many cases go to the Court of Appeal that could be dealt with in the lower courts.
In addition, the Court of Appeal itself is generally bound by its own decisions, so many cases that could be dealt with on appeal are passed up to the House of Lords. However, the Law Lords can only hear about 50 cases a year. This makes the system slow and cumbersome , and means that bad precedents may be in force far longer than necessary. Sometimes there is a very long wait for a suitable case to be appealed ball the way to the House of Lords.
The system of precedent has become increasingly complex. Distinguishing is useful in avoiding past decisions, but it has made the law very complex in some areas because the differences in the material facts may be so small to justify yet another precedent. There are nearly half a million reported cases, so it is not easy to find all the relevant law even with computerised data bases.
Another problem is in the judgements themselves, which are often very long with no clear distinction between the reason for the decision (ratio decidendi) and other things said by the judge (obiter dicta). This makes is difficult in some cases to extract the ratio decidendi. Indeed, in Dodd’s Case (1973), the judges in the Court of Appeal said they were unable to find the ratio decidendi in a decision of the House of Lords.
THE DOCTRINE OF JUDICIAL PRECEDENT - TEST YOURSELF
How Precedent operates within the English system of Case Law
1. On what Latin maxim is judicial precedent based?
2. What does this maxim mean?
3. What do you understand by ‘binding’ precedent?
4. What does the system of precedent provide, and how?
5. Why must the legal reasons for past decisions be made clear?
6. In one word, what do we call the judge’s speech at the end of case?
7. What does the ratio decidendi explain?
8. What does the ratio decidendi create?
9. What is the meaning of obiter dicta?
10 What might the obiter dicta contain?
12 What difficulty sometimes arises between the ratio decidendi and the obiter dicta?
13 Explain the meaning of ‘original precedent’.
14 Where will the judge look for guidance in creating an original precedent?
What kind of reasoning is this?
15 In relation to precedent, what is generally accepted nowadays?
How precedent works within the hierarchy of courts
1. Why can the doctrine of precedent be described as rigid?
2. Since 1973, what has been the highest court affecting English law?
3. Why are decisions made by the ECJ so powerful?
4. What is the most senior national court in the United Kingdom
5. Explain the significance of London Street Tramways v London County Council
(1898).
6. Why do you think the Lords reached this decision in 1898?
7. What does the Practice Statement 1966 empower the Lords to do?
8. When is this power used?
9. Why is this power used sparingly?
10 Name the two Divisions of the Court of Appeal.
11 Which Division is allowed more flexibility, and why?
12 Name the three Divisional Courts below the Court of Appeal.
13 These three Divisional Courts are bound by the decisions of the courts above them,
but are they also bound by their own past decisions?
14 To what extent is the High Court bound by precedent?
15 Explain how precedent affects the so-called inferior courts.
15 Explain how precedent affects the so-called inferior courts.
The role of law reporting in the system of precedent.
1. Why is it essential that ratio decidendi are reported accurately?
2. Explain the importance of the Incorporated Council of Law 1865.
3. Name two organisations who regularly report new precedents.
4. Where are cases heard in High Court, Court of Appeal and the Law Lords
now reported?
5. Where can the general public read abbreviated reports of important cases?
Flexibility in developing the law (distinguishing, overruling, reversing)
Avoiding Precedent
distinguishing
overruling
reversing
1. Why must judges be able to avoid precedent?
2. What is the main device used by judges in all courts
for avoiding a binding precedent?
3. On what grounds does a judge distinguish between two cases?
4. What do you understand by ‘the material facts’ of a case?
5. When a judge distinguishes between two cases because of their material facts,
how many precedents become operative?
6. Explain in some detail how Balfour v Balfour (1919) and Merritt v Merritt (1971)
are very useful in demonstrating how two cases may be distinguished
from each other.
7. In avoiding precedent, explain how overruling occurs.
8. Give an example of how the House of Lords can overrule a decision
of the Court of Appeal.
9. How have the House of Lords been empowered to overrule their own past decisions?
10 Explain in some detail how the Lords used Pepper v Hart (1993)
to overrule their earlier decision in Davis
11 In avoiding precedent, explain how reversing occurs.
12 In other words,………… Complete the sentence.
13 Explain in some detail how Fitzpatrick v Sterling Housing Association Ltd (2000)
is very useful in demonstrating how reversing occurs.
THE ADVANTAGES & DISADVANTAGES
OF JUDICIAL PRECEDENT
Advantages of Judicial Precedent
Complete the sentences
The system of judicial precedent has several advantages, including c……..y, con……cy and f..rness, pre…ion and fl...ibility
Firstly, precedent provides certainty because the courts must ………………………. similar cases. Precedents are established by the ratio ……………… and explained in the ……………… . This means people know what the law is and how it is likely to be ……. in their case. For example, a lawyer can advise his client about the likely ……. of his case, based on the ……… of precedent in similar cases. It also allows people in business to make financial and other …………… secure they will be recognised and supported by the law. The Practice Statement 1966 reminds us how important ………….. is in the law.
Secondly, precedent provides consistency and fairness because defendants know they will receive the ….. treatment no matter where their case is heard or who is ……. the case. As in sport, the rules of law will be applied ……. to both sides. Precedent also means that judges cannot make r….m or ar…rary decisions because judges are bound to apply b……g precedent in similar cases.
However, judges also have considerable flexibility in avoiding precedent by dis……….ing, over…..g and rev….ing. For example, the House of Lords can now use the Practice Statement 1966 to change the law when necessary; for example, Pepper v Hart (1993) overruled and replaced Davis
Thirdly, precedent provides precision in law-making. As new precedents are ……….., English case law becomes more and more precise. For example, the judge was able to d……….h between Balfour v Balfour (1919) and Merritt v Merritt (1971), so that we new have precedents ap………..te to cases similar in the mat….l facts to these cases.
Disadvantages of Judicial Precedent
Complete the sentences
The system of judicial precedent has several disadvantages, including rigidity, complexity and slowness of growth.
Firstly, although judges can avoid precedent by d…………..g, re…..ing, and over…ing, there is still a degree of rigidity or inflexibility in the system. For example, although C…n Courts hear very serious cases, they cannot create b…..g precedent. This means too many cases go to the Court of Ap….l that could be dealt with in the l…r courts.
Secondly, the Court of Appeal itself is generally b…d by its own decisions, so many cases that could be dealt with on appeal are p….d up to the House of Lords. However, the Law Lords can only hear about ….. cases a year. This makes the system slow and cumbersome , and means that bad precedents may be in f…e far longer than necessary. Sometimes there is a very long wait for a s…..le case to be appealed all the way to the House of Lords.
Thirdly, the system of precedent has become increasingly complex. Distinguishing is useful in avoiding p..t decisions, but it has made the law very co..lex in some areas because the differences in the ma…ial facts may be so small to ju…fy yet another precedent. There are nearly half a mi..ion reported cases, so it is not easy to find all the relevant law even with computerised data bases.
Fourthly, another problem is in the judgements themselves, which are often very long with no cl..r distinction between the reason for the decision (ratio decidendi) and other things said by the judge (obiter dicta). This makes is di..icult in some cases to extract the ratio decidendi. Indeed, in Dodd’s Case (1973), the judges in the C…t of App..l said they were unable to find the ratio decidendi in a de…ion of the House of Lords.
No comments:
Post a Comment