Doctrine of Judicial Precedent
The doctrine of judicial precedent or binding precedent is based on one of the most fundamental aspects of any legal system and that is all like cases must be treated alike. Precedent is based on the notion of “Stare Decisis et non quieta movere”, meaning to stand by decisions and not to disturb that what is settled. In common law system a huge part of law is made of decided cases i.e. judge made law or case law. This decision by judges which carry the authority of law upon pronouncement must therefore necessarily be bound on later judges to ensure certainty and fairness within the system.
Due to constitutional position, the English judges are always seen as the one who declares the law whilst parliament is law maker. In a wider sense this does not just mean they declare the law made by parliament but also laws are pronounced by earlier judges. However, stare decisis has two aspects, one concern the hierarchy of the courts, the place of a court within the structure of decision making, and other concern the precedential weight or status on a particular decision.
In judging the precedential weight, it should be bear in mind that ration decidendi i.e. main reason for the judgement is binding on later judges. (R v. Howe) Where as persuasive precedent like obiter dicta i.e. other part of the judgement, ratio of lower courts or decisions of privy council and foreign courts are not absolutely binding but may be applied depending on factors’ like rank of the court in the hierarchy, the prestige of the judges involved.(R v. James)
However, the difficulty of analysing ration from a judgement lies in the judges expressing the principle too widely or too narrowly. However in modern view, the ration decidendi of a case is what it is determined by a court in a later case. This objective approach towards finding the ratio of a case makes it possible for a judge in later cases to evaluate to the status of obiter statement. But what the ratio is, is a matter of analysis, judgement and argument. All the material fact of the case is to be considered by judge. It much depends on the judge’s mission, vision opinion and whether he believes in adoption or extension.
The doctrine of binding precedent mainly depends on the status of the court within the hierarchy of English legal system. The general rule of the doctrine is that decisions of higher court are binding upon the lower courts and secondly decisions of all courts are binding upon themselves.
House of Lords or now the Supreme Court is the highest authority in the English legal system to interpret the law and its decision are binding on lower court. (London Tramways v. London County) However, in response to developing the common law in line with social and economic change Lord Gardiner LC in 1966 introduced the Practice Statement 1966, Where House of Lords allowed to depart from its own previous decision only when it “appears right to do so” and there was a wide acceptance that this new found freedom will be applied sparingly. In (Jones v Secretary of State for Social Service) the issue of using the 1966 Practice Statement came up. Four out of seven lords were clear that the House’s decision in 1967 on the same issue in (R v Dowling) was wrong and argued that this was not enough to justify the House from departing from the previous decision. Lord Reid stated that broad issues of justice or public policy or question of legal principles must be involved. In (Hall v Simon) 2002 the Lords reversed the 1966 decision in (Rondel v. Wonsley). In (Knuller v. DPP) the House was invited to overrule its decision in (Shaw v DPP) the ladies directory case, and they refused. Lord Reid thought that it will be wrong to use the Practice Statement to obset the decision. Any change should be done by the parliament. In (Shivpuri) the House of Lords overruled (Anderton v Ryan). Lord Bridge who played the leading part in (Anderton) stated in (Shivpuri) that if a serious error have distorted to the law, the sooner it was corrected the better.
However, under the European Communities Act 1972, under S.3 (1) of the Act the English courts were asked to follow decision of European Court of Justice. And also, under S.2 of Human Rights Act 1998, the English Court were bound to take into account a decision of European Court of Human Rights as court fall under the definition of public body and must take into account the decisions on ECtHR.
Moreover, there are methods the judges use to release themselves from the clutches of binding precedent. A technique of distinguishing a case which involves re-interpreting the ratio decedendi of the earlier case and re-classification of parts of the decision, so that what was once considered to be part of ratio, and so strictly binding, becomes obiter and so persuasive only. (Buckley LJ in Olympia Oil v Produce Brokers). Another approach is overruling a case of lower court by higher courts in the hierarchy where the decision was wrong or reversing a case sent for appeal.
One of the famous way of moving way from precedent is per incur am, is one decision reached by carelessness or mistake, and can be avoided. In (Morelle v Wakeling) Lord Evershed MR stated that “the only case in which decisions should be held to have been given per incur am are those of decision given in ignorance or forgetfulness of some inconsistent statutory provision or of same authority binding on the court concerned. The same fact was occurred in (Williams v. Fancett) (Duke v Reliance system) (Richards v Richards). In (R v Taylor) Lord Goddard CJ stated “law has either been misapplied or misunderstood in (R v Treanor) for which it was overruled.
In (Cassell v Broome) the Court of Appeal whose decision are binding on the later courts in the hierarchy and it is bound to follow House of Lords, refused to follow House of Lords decision in (Rookes v Barnard). Lord Denning, the Master of the Rolls, Salmon LJ and Phillimore LJ held that it is not binding as it ignores two other House of Lords cases (Hulton v Jones) ( Loy v Hamilton). They therefore invoked the doctrine that House of Lords in (Rookes v Barnard) had acted per incuriam.
The suggestion was not well received. Lord Hailsham delivered a magisterial rebuke to Lord Denning and his colleagues stating that “it is not open to the Court of Appeal to give gratuitous advice to judges of first instances to ignore the decisions of House of Lords”. Lord Reid, Wilberforce, Diplock and Kilbrandon all agreed with Lord Hailsham.
Further in (Schorch v Hennin) the Court of Appeal held by two by one (Lord Denning and Foster J,lawton J dissenting) that judgement in an English court could be given in a foreign currency other than sterling not withstanding a clear decision to the contrary by the House of Lords in the (Havana Railways case). Lord Denning based his view on the maxim cessante ratione cessat ipsa lex i.e. when the reason for the rule exists goes the rule lapses. The issue further arose in (Miliangos) where trial judge Bristow followed House of Lord’s decision in (Havana). Finally it went to House of Lords where Lord Simon of Glaisdale stated that “ courts which are bound by the rule of precedent are not free to disregard an otherwising binding precedent. Thus, strictly applying the doctrine of precedent and not allowing Court of Appeal to depart from it. However, Denning argued that whilst certainty is a good thing, too much of rigidity and strict application of the doctrine of precedent would lead to a very robotic and dogmatic legal system, with no proper development of the law whatsoever. (The Discipline of Law by Lord Denning)
Generally the Court of Appeal is bound by its own previous decision, however subject to some exceptions provided by (Young v Bristol). These exceptions are Court of Appeal is not bound where its own previous decisions is in conflict, it must decide which to follow. Thus in (Tiverton Estate ltd v. Wearwelll) the Court refused to follow (Law v Jones). Again, Court of Appeal should not be bound by a decision, if there is a conflict between the decisions of House of Lords and Court of Appeal. It is likely that they will follow House of Lords. (Family Housing v Jones) The third exception on where the decision is given per incuriam.(Duke v Reliance system) (Rakhit v Carty)
However, other two exceptions are created under the European Communities Act 1972, under S.3(1) of the Act the English courts was asked to follow decision of European Court of Justice. And also, under S.2 of Human Rights Act 1998, the English Court were bound to take into account a decision of European Court of Human Rights as court fall under the definition of public body and must take into account the decisions on ECtHR.
In (Davies v Johnson) Lord Denning attempted to extend the scope of (Young v Bristol) where the Court of Appeal refused to follow the earlier decision in (B v B)(Cantliff v Jenkirs) by a majority of three to two.(Lord Denning MR, Sir George Baker and Shaw LJ, Goff and Bauce J dissenting. This issue was reaffirmed by House of Lords where Lord Diplock stated that Doctrine of Stare decisis is very much binding on the Court of Appeal.
However, Lord Denning has always attempted to establish greater flexibility for the Court of Appeal. His argument was on the fact that not many cases reach the House of Lords. Lord denning was never one to be too concerned with procedures and system and hierarchy, as for him achieving justice was the first duty of any judges. The issue on whether the Court of Appeal falls under the privilege of the Practice Statement 1966 to depart from its previous decision was raised by him in (Gallie v Lee). He stated In (London v Tramway) as a rule of law House of Lords was bound by its own decision but the in 1966 that discarded it. Why can’t Court of Appeal discard the rule of 1944? Lord Denning further included “we are not fettered as it was once thought, it was a self-imposed limitation, and we who imposed it can also remove it’. However, his conclusion was not supported by Lord Russell LJ and Lord Salmon LJ. They were more reluctant to follow the doctrine of stare decisis and bind themselves by the decision of House of Lords.
The application of the doctrine of stare decisis does not differ materially is case of criminal or civil decisions of Court of Appeal.(R v Spencer) However, as a person’s liberty is at stake precedent is not followed so rigidly as in civil division. (R v Taylor) The decision of House of Lords and Court of Appeal are binding on later courts i.e. High Courts, Crown Courts, County and Magistrate courts and also their own decisions.
Back in 18th century the view of judge’s role was that they merely declare the existing law. (The declaratory theory)(Lord Esher in Willis v Baddeley). But in the 21st century the view has changed. Lord Radcliffe said that the modern view is that judges do make law. (Not in Feather Beds) A. Paterson’s survey of nineteen law lords active between 1967 and 1973 found that at least twelve thought that the law lords had duty to develop the common law in response to changing social conditions.
This approach was seen in cases like (Herrington v. British Railway Board which overruled (Addie v Dumbreack) on ground of the change in social and physical condition since 1929. In (Miliangos v George) the House of Lords departed from the it’s previous decision in (Re United Railways of the Havana) and (Regla Warehouse) held that remedy can be given in foreign currency. Furthermore, cases like (R v. R) clearly shows judges approach towards moving with the changing social, economic and cultural development and establishing women rights. In (National Westminister Bank v Spectrum) 2005 the development in common law has been occurred without departing or overruling previous court’s decision. In (Donogue v. Stevenson) tortious liability was first established independent of contract, which was followed in (Langridge v Lavy) ( Winterbottom v Wright). Moreover it was thought by Professor Hurt and Ronald D Workin that judges do includes in “Judicial Law Making”, thus it should be considered that following or departing from a precedent is ultimately a matter of judicial discretion. Again judges are the one who maintains the balance between flexibility and stability. Moreover doctrine itself opens gaps for the judges, especially for the higher courts in the hierarchy e.g. distinguishing etc. Moreover, the introduction of EC law has given judges the scope to use purposive approach of interpretation and widen the practice of judicial law making. And also the Human Rights Act 1998 asks the judges to interpret primary and secondary legislation to make compatible with the convention rights, again allowing the judges to spread their wings.
As the judges end up making new law and in practice they have considerable power to do so. This power of discretion of judges may be in conflict with Separation of Powers enacting legislation by parliament and the courts is to interpret the law and not to create law. To combat this situation legislation must grow faster to deal with necessary and modern issues.
However, the doctrine of judicial precedent is not used so discretionarily as thought. Without judicial precedent judges will have a tremendous discretion and would decide what they see the best. It should be noted that in common law system, precedent has greater potency than merely becoming a tool of imitation for a later judges. It is the very essence of what makes the system and gives it distinct character. It also protects the rule of law by providing certainty on making law same for all. Thus, such factors demands that precedent be treated as having force or weight and should not be ignored but departed only on the basis of rational argument and justification.
Ongoing 2nd Year LL.B (Hons),
University of London.