Law-Exchange.co.uk Powerpoint

Judicial Precedent

By Mrs Hilton

Hierarchy of the courts

• HOL• Court of Appeal• High Court• Crown Court, County Court and Magistrates

Court

HOL

• Most senior court in England and Wales• Decisions made here bind all the courts below

it• HOL bound by its own previous decisions, BUT

may depart when “right to do so”.• HOL is bound to follow the ECJ if a case

involves EU law.

Court of Appeal

• The COA is bound to follow the decisions of the HOL

• Also bound by its own decisions• Criminal division follows Young V Bristol

Aeroplane 1944 exceptions

High Court

• Bound by the courts above it and binds the courts below it

• The Divisional High court (appeal courts in the high court) is bound by its own past decisions

• Binds the High Court Ordinary

HIGH COURT

• The High Court is bound by the Court of Appeal and the House of Lords but is not bound by other High Court decisions. However, they are of strong persuasive authority in the High Court and are usually followed.

• Decisions of individual High Court judges are binding on the county courts.

Crown Court, County Court and Magistrates Court

• The inferior courts are not bound by their own decisions nor do they bind other courts.

• This is because they do not make precedents• They just apply precedents set by the higher

courts

Activity

a) Supposing a precedent was set by a civil case in the Court of Appeal, which courts would be bound to follow this precedent?

b) Supposing a precedent was set by a criminal case in the Queen’s Bench Divisional Court, which courts would be bound to follow this precedent?

c) Explain why the hierarchy of courts is an important part of the doctrine of precedent.

2 Types of Precedent

1. Binding2. Persuasive

When a judge(s) decide a case they make a speech explaining what their decision is. This speech is called a judgement.

During the judgement they will:•Give a summary of the facts•Give the Ratio Decidendi (reason for the decision)•Sometimes state obiter dicta (other things said by the way)•Give the verdict

Binding Precedent

• Part of the judgement that other judges have to follow

• The Ratio Decidendi made by a judge high enough in the hierarchy will bind future decisions of other judges

• Only binding if case heard in an appropriate court and facts are sufficiently similar.

Case example: R v Dudley & Stevens (1884)

• The two shipwrecked defendants killed and ate the cabin boy. They were convicted of murder.

• The ratio decidendi was as follows:• The court gave three reasons for refusing a defence of

necessity:• (i) if necessity is not available on a charge of theft of food

because of starvation, it cannot be available to a charge of murder;

• (ii) the Christian aspect of giving up one’s own life to save another’s rather than taking another’s life to save one’s own; and

• (iii) impossibility of choosing between the value of one person's life and another's.

Persuasive Precedent

• A persuasive precedent need not be followed but may be helpful to a judge making a decision

• If a judge follows a past decision that was not binding, the decision is said to be persuaded.

• These can include decisions of Courts not in English Hierarchy (see Wagon Mound)

Case example: Hill v Baxter (1958)

• The defendant driver fell asleep and drove into some people. His conviction for driving offences was upheld as he was at fault for not stopping when he felt drowsy.

• The judge went on to give the fictional example of someone being stung by a swarm of bees while driving, and losing control of the car as an example of a driver not being at fault.

• This example would be obiter dicta

Wagon Mound 1961• The defendants negligently allowed a spillage of oil from their

vessel, which reached the claimant's wharf. The claimants sought advice on whether the oil was flammable and, being told (incorrectly) that it was not, continued welding work they had undertaken. The oil caught fire and did substantial damage. The claimants were able to recover in Negligence the cost of repairing the damage caused by the oil spillage, but not of the damage caused by the fire. Disapproving RePolemis1921, the Privy Council held that, although the defendants it was foreseeable that the oil would cause damage, the defendants had no way to foresee the full extent of the damage that it would eventually cause. As a result, the damage was too remote.

Lynch v DPP for Northern Ireland [1975] HL

[Duress not available for attempted murder]D was an accessory to murder in that he drove a car to a place under threats from an IRA gunman M. D waited while M and his associates killed a policeman, and then drove them away.

Held: A 3-2 majority in the House of Lords allowed his defence of duress.

[The decision to allow the defence of duress to an accessory to murder has since been overruled in Howe.]Lord Simon (dissenting)

The threat must be a threat of death or serious personal injury; Threats to damage property, or threats of any other kind, are not sufficient.

Not guilty but would be now

R v Howe (1987)• [Duress not available in murder or attempt]

D acting under duress, took part with others in two separate murders, and on a third occasion the intended victim escaped.

Held: Using the 1966 Practice Statement to depart from the decision in Lynch.

Duress is not available as a defence to murder either to a principal or accessory. Morals, law and policy should deny a man the right to take an innocent life even at the price of his own.

• Lord Hailsham; • ”…the overriding objects of the criminal law must be to protect innocent

lives and to set a standard of conduct which ordinary men and women are expected to observe if they are to avoid criminal responsibility…”

• Guilty - Lynch overruled

R v Gotts (1991)

• [Duress not available in murder or attempted murder] D aged 17 caused serious injuries when he stabbed his mother with intent to kill her. He alleged that his father told him to do so and threatened to kill him if he did not carry out his wishes.

• Held: Following the decision in R v Howe, as duress is no defence to murder it would be illogical to apply this defence to attempted murder.

Guilty

FORD

• Follow• Overrule• Reverse• Distinguish

A judge has to decide if they have to follow the precedent that has already been madeThe options open to the judge are FORD

Follow

• If the facts of the case are significantly similar to an existing precedent then judge should always follow the decision

• E.g. R V R (Can’t give details)

Overrule

• A superior court may overrule the decision of a court below it and therefore change the law.

• The HOL can use the Practice Statement to overrule its earlier decisions (handy)

Hol Practice statement 1966

• Before 1966 the HOL was bound by its own decisions.

• This meant the law was certain but could not change

• 1966 HOL passed practice statement which allows it to change its previous decisions if it appears “right to do so”.

How HOL can avoid Precedent

• The law lords since 1966 have been able to overrule themselves (1966 practice statement) when it appears "right to do so."

• The law lords are pretty reluctant to do so and do not often overrule themselves on criminal, contract and property law.

• They can also use the method of distinguishing, which is basically finding a different material fact from the previous case (the case the lords are trying to follow).

• The final way of overruling themselves is if they have made an error in creating the past precedent (per incuriam). Cases include Rv Shivpuri which overrules Anderton v Ryan on the attempts to d the impossible.

R v Shivpuri [1986]

• D was arrested entering the country, carrying with him a package which he believed contained either heroin or cannabis, but was in fact ground dried cabbage and quite harmless.

• D was charged with attempting to import a prohibited drug, and his appeal was dismissed by the Court of Appeal.

• The House of Lords took note of the widespread criticism of its decision in Anderton v Ryan [1985] (given after the Court of Appeal had decided the instant case) and applied the Practice Statement to depart from that decision.

Addie v Dumbreck (1929)

• Established the law that trespassers that get injured are not able to claim for personal injury from the occupiers of the land. (Colliery accident)

• Overruled in British Railways Board v Herrington (1972) by HOL using Practice Statement (Railway line accident)

Reverse

• A superior court may change the outcome of a case from a lower court based on the same law

• E.g the Crown Court applies the existing law and finds the defendant guilty whereas the Court of Appeal finds the person not guilty when applying the same law

• E.g R v Kingston (can’t give details)

Distinguish

• If the facts are significantly different from the facts of an earlier case the judge does not have to follow the precedent that is already established.

Rylands v Fletcher (1866)• Water escaped from the defendants' reservoir, through some old mine shafts that

had not been adequately sealed, and flooded the plaintiff's working mines. • Blackburn J said the true rule of law was that the person who for his own purposes

brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and if he does not do so he is prima facie answerable for all the damage which is the natural consequence of the escape.

• Upholding this judgment in the House of Lords, Lord Cairns LC said the defendants might lawfully have used their land for any purpose for which it might in the ordinary course of the enjoyment of land be used, and if in the natural use of the land there had been any accumulation of water, which by the operation of the laws of nature had passed off into the land occupied by the plaintiff, the plaintiff could not have complained.

• On the other hand, if the defendants not stopping at the natural use of their land had desired to use it for any non-natural purpose, and if in consequence of their doing so the water came to escape and pass off into the plaintiff's land, then that which the defendants were doing they were doing at their own peril.

Green v Chelsea Waterworks (1894)

• A water main burst and flooded the plaintiff's premises. In the Court of Appeal, finding for the defendant, Lindley LJ said the rule in Rylands v Fletcher was not to be extended beyond the legitimate principle on which the House of Lords decided the case.

• If it were extended as far as strict logic might require, it would be a very oppressive decision. The company having been authorised by Act of Parliament to lay the mains, and having a statutory duty to maintain a water supply, were not liable.

• Example for distinguish

Merritt v Merritt [1970]• A husband and wife splitting up after 25 years' marriage agreed in writing

that if the wife kept up the mortgage repayments on their joint home, the husband would transfer total ownership to her.

• W did keep up the payments, but H then refused to transfer. There was a binding precedent in Balfour v Balfour [1919], in which the Court of Appeal had said that agreements - even written agreements - between spouses do not create enforceable contracts.

• In that case, however, the agreement (H to pay W £30 per month) had been made while the couple had being living amicably together and the husband was about to go to Ceylon on government business; they had not split up until two years later.

• The court in Merritt therefore distinguished Balfour and said the precedent did not apply where the marriage relationship had already broken down; the Merritts' agreement was legally enforceable.

COURT OF APPEAL

• The Court of Appeal is bound by decisions of the House of Lords even if it considers them to be wrong.

• In the criminal division, in addition to the Young exceptions, precedent is not followed as rigidly because a person's liberty may be at stake.

Court of Appeal, Young v Bristol Aeroplane (1944)

• The court of Appeal should follow its own previous decisions, BUT this case is the exception

• In Young v Bristol Aeroplane Co Ltd the Court of Appeal (civil division) held that it was bound by its own previous decisions subject to the following three exceptions:– Where there are two conflicting decisions, the CA must decide which to

follow and which to reject– Where there is a conflicting HOL decision, the COA must follow this and

reject its own past decision– The previous decision was given per incuriam (by carelessness or mistake).

• This case involved compensation for a workman, under the Workmen's Compensation Act

Davis v Johnson [1978]• County Court judge made an order excluding a joint tenant P from his home

after several serious assaults on his cohabitant; he appealed against the validity of such an order.

• A full Court of five judges led by the Master of the Rolls and the President of the Family Division dismissed his appeal, overruling a previous Court of Appeal decision that would have forced a decision in his favour.

• Lord Denning said the doctrine that the Court of Appeal is bound by its own previous decisions is a rule of practice, not of law, and should be modified to allow the Court to depart from an earlier decision if convinced that it is wrong.

• The House of Lords dismissed P's further appeal, but affirmed the rule in Young v Bristol Aeroplane . Because of the position of the Court of Appeal as an intermediate appellate court, they said, with increasing membership and a number of divisions and the consequent need for legal certainty, the rule that (subject to clearly defined exceptions) the Court of Appeal is bound by its own decisions should be reaffirmed unequivocally.

Should judges make law?

• Parliament is democratically elected, so are MPs not the best people to make laws for the country?

• Due to lack of parliamentary time, it may be important for some laws to be made by judges

• Judges are legal experts whereas politicians are not• Judges may be biased and out of touch with

modern society• Judiciary needs to be more representative of

society to make it more appropriate for law making

Advantages

• System creates certainty within the law• Judgements can give detailed practical rules for

other judges to follow• Outcome of a new case can be predicted fro

earlier decisions so that it avoids unnecessary litigation

• Flexibility within the system allow the law to develop when necessary and it can be changed quicker than an act of parliament

Disadvantages

• The rigidity of the system of precedent prevents the law from being changed

• Illogical distinctions may be made by judges in a case to avoid following a previous decision

• It is unpredictable and dependent on chance that a case will reach a court high enough to be able to change the law

• The Ratio Decidendi of a case may be difficult to find in the law report and may be misapplied to a future case

• It is undemocratic to allow judges to make laws