Unit 1 - LAW01 - Law Making and the Legal System
THE DOCTRINE OF JUDICIAL PRECEDENT
1. Explain the doctrine of judicial precedent
and how it operates within the English system of case law.
Judicial precedent is based on the Latin maxim stare decisis which roughly means ‘stand by what has already been decided’. This means that judgements reached in earlier cases should be followed in later cases unless there are sound reasons why they should not be. In other words, judges can create binding precedents by the judgements they make because other courts are bound to follow these judgements. This system provides fairness and certainty in the law because defendants can expect to be treated fairly no matter where the case is heard, and the courts will be reasonably certain how the law should be applied in particular cases.
Precedent can only operate effectively if the legal reasons for past decisions are made clear. Therefore, at the end of a case, the judge will make a speech giving his decision and, most importantly, giving his reasons for his decision. This is called the ratio decidendi (reason for deciding), and it is the part of the judgement in which the judge explains the principles of law upon which his decision is based. This is what creates a precedent for judges to follow in future, similar cases. Judgements made by a higher court are binding on all courts beneath them.
A judge’s speech may also include obiter dicta (other things said). For example, a judge may comment on what his decision would have been if the facts of the case had been different. These comments are not binding in future cases, but they may help other judges understand the legal reasoning for the ratio decidendi. It is sometimes difficult to separate the ratio decidendi from the obiter dicta because the judgement is usually given as a continuous speech with no headings or sections.
If a point of law in a case has never been decided before, the judge will create what is called an original precedent. For guidance, he will look at cases similar to the one before him and decide on what legal principles the judgement was based. This will influence him in the creation of the new precedent. This is called reasoning by analogy. Nowadays it is accepted that judges are creating new law when they create judicial precedent.
2. Explain how precedent works within the hierarchy of courts.
In England Wales
Since 1973, the highest court affecting the English legal system is the European Court of Justice. Decisions made by the ECJ are binding on courts throughout the European Union.
The most senior national court is the Supreme Court ( formerly House of Lords). Its decisions bind all other courts in the English legal system. From 1898 (London Street Tramways v London County Council until 1966, the House of Lords was bound by its previous precedents. However, the Practice Statement 1966 allows the Lords to depart from previous precedents where it is in the interests of fairness and justice so to do. The Practice Statement 1966 allows the Lords more flexibility, but they use this power sparingly as they wish the public to have confidence that the law is as certain as it can be.
Below the House of Lords is the Court of Appeal which has two divisions: Civil and Criminal. With limited exceptions, the Appelate Courts are bound by their own past precedents. The Criminal Division is allowed more flexibility than the Civil Divisions where the point at issue involves the liberty of the defendant.
Below the Court of Appeal are the three Divisional Courts (Queen’s Bench, Chancery and Family). These courts are bound by the decisions of the courts above them. They are also in general bound by their own past decisions.
The High Court is bound by the decisions of all the courts above it, and in turns it binds the courts beneath it. High Court judges follow each other’s decisions though they are not obliged to do so.
The so-called inferior courts are the Crown Court, the County Court, and the Magistrates’ Court. They are bound to follow the decisions of the superior courts, and it is unlikely that a decision created by an inferior court can create precedent.
3. Explain the role of law reporting in the system of precedent.
For precedent to be effective there must be an accurate record of what decisions have been made by the courts. In 1865 the Incorporated Council of Law was established and controlled by the courts to report the law. Judgements are noted down exactly as delivered by the judge to ensure accuracy.
Other well-established reports include the All England series (All ER) and the Weekly Law Reports (WLR). In addition, all High Court, Court of Appeal and the Law Lords cases are reported on the Internet.
Quality newspapers and journals also publish law reports; these are summarised versions in which the law reporter tries to identify and explain the essential parts of the judgement.
Explain:
case law
stare decisis
binding precedent
hierarchy of courts
Appeal courts
Practice Statement 1966
ratio decidendi
obiter dicta
Law Reporting – Incorporated Council of Law Reporting 1865 – All England law reports – Weekly Law Reports – Internet reporting – newspapers and journals
www.lawreports.co.uk (summaries of important cases in the Daily Law Notes section)
www.publications.parliament.uk (reports of cases from the House of Lords)
www.bailii.org (cases from the Court of Appeal)
4. Discuss whether the doctrine of precedent allows judges flexibility in
developing the law (distinguishing, overruling, reversing)
As society changes and develops, our laws must be able to reflect these changes if they are to be seen as fair and relevant. Judges have a number of ways to avoid precedent, so they have room to manoeuvre in giving judgement.
Distinguishing is the main device used by judges in all courts for avoiding a binding precedent. No two cases are exactly the same. Therefore, a judge may regard the facts of the case before him to be sufficiently different from the facts of the case in which the binding precedent was set. In these circumstances, the judge is not bound to follow the original precedent; they may distinguish the case on its material facts. This creates a second binding precedent. The original precedent remains binding in cases of the same material facts.
These two cases show how the distinguishing process operates. Balfour v Balfour (1919) and Merritt v Merritt (1971) both involved a wife making a claim against her husband for breach of contract. However, in Balfour there was merely a domestic agreement between husband and wife, while in Merritt husband and wife had made an agreement in writing after they separated. The court distinguished the facts between the cases and created a new precedent based on Merritt. Balfour, of course, remained the precedent for cases similar to itself.
Overruling occurs where a court in a later case states that the legal rule decided in an earlier case is wrong. For example, the House of Lords can overrule a decision of the Court of Appeal by declaring the Court of Appeal reached the wrong legal rule. The House of Lords may also use its power under the Practice Statement 1966 to overrule one of its own past decisions.
For example, in Davis v Johnson (1979) the Lords ruled that judges could not use Hansard (the record of what is said in Parliament) to try and decide what certain words in an Act of Parliament meant. However, in Pepper v Hart (1993) the Lords overruled David v Johnson (1979) and created a new precedent allowing judges to consult Hansard.
Reversing occurs where a higher court reverses the decision of a lower court on appeal in the same case. In other words, reversing is where the same case has gone to appeal and the higher court reaches the opposite decision to that of the lower court.
For example, in Fitzpatrick v Sterling Housing Association Ltd (2000), the Court of Appeal refused to allow a homosexual partner of the deceased tenant to take over the tenancy as he could not be considered part of his family as required under the Rent Act 1977. Fitzpatrick appealed to the House of Lords who reversed the decision of the Court of Appeal, so giving same-sex partners the same right as different sex partners.
(It is important you make the difference between overruling and reversing
clear. Many candidates muddle the explanations).
Distinguishing: avoiding a previous precedent because the facts in the present case are materially different. Balfour v Balfour (1919) not followed in Merritt v Merritt (1971).
Overruling: avoiding a precedent by stating the legal ruling in an earlier case is wrong. Pepper v Hart (1993) overruled and replaced Davis
Reversing: a higher court overturns the decision of a lower court on appeal. This can only happen if the case is appealed to a higher court. In Fitzpatrick v Sterling Housing Association Ltd (2000), the House of Lords overturned the decision of the Court of Appeal.
5. Outline and briefly explain the court structure.
European Court of Justice
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