Legal System | Judicial Precedent
Decisions: Binding
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Introduction
Judicial precedent requires a settled court hierarchy to allow judges to know which precedents they are bound to follow.
The current English court structure was largely established by the Judicature Acts 1873 - 75. The House of Lords was made the final appellate court under the Appellate Jurisdiction Act 1876 and the Supreme Court took over this role in 2009, under the Constitutional Reform Act 2005.
All courts are bound by superior courts and some courts are bound by previous decisions of their own court.
Challenges
Despite the doctrine, there have been attempts to depart from decisions of the House of Lords. Notably by Lord Denning, in the Court of Appeal.
Conway v Rimmer [1967]
Lord Denning: .. My brethren today feel that we are still bound by the observations of the House of Lords in Duncan v Cammell, Laird & Co. Ltd.. I do not agree. The recent statement of Lord Gardiner LC has transformed the doctrine of precedent. This is the very case in which to throw off the fetters...
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House of Lords reconsidered the Duncan case and overruled it, but stated firmly that it had been binding on the Court of Appeal.
Cassell v Broome [1971]
Lord Hailsham disapproved: .. it is not open to the Court of Appeal to give gratuitous advice to judges of first instance to ignore decisions of the House of Lords in this way and, if it were open to the Court of Appeal to do so, it would be highly undesirable... The fact is, and I hope it will never be necessary to say so again, that, in the hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers...
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Court of Justice of the European Union
The Court of Justice of the European Union (CJEU) is not bound by the doctrine of precedent. It is based on the Civil (Roman) Law system, which is operated in most of the European Union member States. Although there is no formal adherence to precedent the court does attempt to be consistent, take count of prior cases and will only depart from previous jurisprudence for compelling reasons.
A decision of the CJEU is binding on all courts throughout the EU member States.
European Court of Human Rights
The European Court of Human Rights (ECtHR) also does not follow a doctrine of binding precedent.
Cossey v UK (1990)
ECtHR held that Article 12 of the European Convention on Human Rights did not grant postoperative transsexuals the right to marry a person of the now opposite sex.
The Court stated that it .. is not bound by its previous judgments... [however] ..usually follows and applies its own precedents, such a course being in the interests of legal certainty and the orderly development of the Convention case-law... Nevertheless, this would not prevent the Court from departing from an earlier decision if it was persuaded that there were cogent reasons for doing so. Such a departure might, for example, be warranted in order to ensure that the interpretation of the Convention reflects societal changes and remains in line with present-day conditions...
.
Goodwin v UK (2002)
ECtHR departed from its ruling in Cossey.
On the basis that there had been .. major social changes in the institution of marriage since the adoption of the Convention as well as dramatic changes brought about by developments in medicine and science in the field of transsexuality...
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Supreme Court
The Supreme Court is the highest court United Kingdom, for both civil and criminal appeals and replaces the House of Lords, under the Constitutional Reform Act 2005. The Court also deals with cases previously considered by the Judicial Committee of the Privy Council, which are cases from UK overseas territories, Crown dependencies and some Commonwealth countries.
The House of Lords was bound by its own previous decisions. The rationale was that the decisions highest court in the land should be final so they could be relied upon and create legal certainty.
London Tramways Co. Ltd v London County Council [1898]
Reaffirmed tradition that the House of Lords was bound by its own previous decisions. The only exception was if a decision had been made per incuriam.
Sometimes referred to as the London Tramways rule.
The House of Lords remained strictly bound by its own previous decisions until 1966.
Practice Statement (Judicial Precedent) [1966]
Abolished the rule that House of Lords was bound by its previous decisions.
Lord Gardiner: .. Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty on which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules...
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Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.
In this connection they will bear in mind the danger of disturbing retrospectively the basis upon which contracts, settlements of property, and fiscal arrangements have been entered into and also the especial need for certainty in the criminal law. This announcement is not intended to affect the use of precedent elsewhere than in this House...
Austin v Southwark London Borough Council [2011]
Supreme Court confirmed the Practice Statement has the same effect as it had in the House of Lords. Under the Constitutional Reform Act 2005, established jurisprudence of the House of Lords was transferred to the Supreme Court.
Cases departing from previous decisions
The Practice Statement highlights the need for certainty and the recognises the issues arising from departing from previous decisions. Therefore the ability to depart has been used infrequently by the House of Lords and accordingly in the future by the Supreme Court. In cases where the House of Lords concluded a law should be changed it considered whether legislation would be a more suitable remedy than a departure from previous precedent.
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Miliangos v George Frank Textiles [1976]
Lord Cross stated that the Practice Statement
.. does not mean that whenever we think that a previous decision was wrong we should reverse it...
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R v Secretary of State for the Home Department, ex parte Khawaja [1984]
House of Lords overruled its previous decision in R v Secretary of State for the Home Department, ex parte Zamir [1980].
In Zamir it was held that an alleged illegal immigrant could be detained and removed if the immigration officer was satisfied that entry was illegal. It placed the burden of proof on an alleged illegal immigrant to show that his detention was not justified.
In departing, the House of Lords considered the Zamir decision limited the power of the courts to review the removal and so caused an injustice and impeded the development of the law.
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British Railways Board v Herrington [1972]
House of Lords overruled its previous decision in Addy and Sons v Dumbreck (1929).
In Addy it was held that an occupier of premises was only liable to a trespassing child if that child was injured by the occupier intentionally or recklessly.
In departing, the House of Lords cited social policy reasons, that attitudes had changed since th earlier decision and increased the rights of trespassers to sue for injury.
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Murphy v Brentwood District Council [1991]
House of Lords overruled its previous decision in Anns v Merton London Borough Council (1978).
In Anns it was held that local authority was under a legal duty to take reasonable care to ensure that the foundations of a building complied with building regulations. The decision was subject to widespread judicial and academic criticism because it imposed a wide duty of care on local authorities which was anomalous in light of the development of the tort of negligence.
In departing, the House of Lords restricted the ability to sue for pure economic loss and the decision can be seen as a matter of public policy.
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Conway v Rimmer [1968]
House of Lords overruled its previous decision Duncan v Cammell Laird and Co. Ltd [1942].
In Duncan the claimant was denied the right to obtain disclosure of documents relating to submarine design because it was held that a Minister's affidavit was sufficient to claim privilege and deny disclosure. Of particular was the fact that it was during wartime.
In departing, the House of Lords held a trainee police officer could order disclosure of reports written about him and that a Minister's affidavit was not the determining factor.
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Hall v Simons (200)
House of Lords overruled its previous decision in Rondel v Worsley [1967].
In Rondel it was found that barristers were immune from claims of negligence in court representation.
In departing, the House of Lords held that barristers should not be immune from negligence claims, on policy grounds.
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R v Howe [1987]
House of Lords overruled its previous decision in DPP for Northern Ireland v Lynch (1975).
In Lynch it was found that the defence of duress was available to a someone who had aided and abetted in a murder.
In departing, the House of Lords held the duress defence was not available for someone who had aided or abetted in murder. The court referred to rising violent crime as a social policy reason for the new decision and also had to rely on availability of parole and the royal prerogative of mercy to mitigate any problems caused by the reversal of its decision.
House of Lords has used the power in cases where a previous decision causes injustice, uncertainty or curtails the development of the law.
Court of Appeal: Civil Division
The Criminal and Civil Division are considered to be not bound by one another because their predecessors (the Court of Appeal and the Court of Criminal Appeal) were not bound by each other although there is no ruling stating this.
As a general rule the Civil Division decisions are binding on all the courts below it in civil cases and the division is usually bound by itself.
Young v Bristol Aeroplane Co. Ltd [1944]
The Court of Appeal found that it is bound by its own previous decisions subject to three exceptions.
The Court should not follow a previous decision if it conflicts with other Court of Appeal decisions, it has been implicitly overruled by the House of Lords or it was made per incuriam.
Exceptions
These exceptions were seen as necessary for the following reasons.
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Conflict
Two conflicting previous Court of Appeal decisions can only arise if the earlier case was not followed by the second case. This should not arise but can do so because the court in the second case may not have been aware of the first case, perhaps it was only a few days earlier or was never officially reported, one of the cases may have been decided per incuriam, the first decision was not cited to the court or it was cited but misunderstood by the second court.
The Court of Appeal can follow the earlier case unless it can be distinguished. If it can be distinguished, then neither the second nor the third court is bound to follow it. The exception allows the Court of Appeal to follow the second case despite the fact the decision should not exist (as it should have followed the first case).
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Implicitly Overruled
If the previous decision conflicts with a higher court decision then the higher court must prevail. This exception applies when a decision has been implicitly rather than expressly overruled.
This could happen where a case was not heard by the Court of Appeal and went straight to the House of Lords, under the leapfrog procedure. Or if another Court of Appeal case has been expressly overruled without, being cited to the House of Lords, which could happen if the House of Lords case was on very different facts or issues.
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Per Incuriam
Per incuriam (
through carelessness
) must be construed narrowly and it not simply enough for the previous decision to be wrong. If a decision is per incuriam because it was in ignorance of a previous case then simply the rule of precedent provides opportunity to reverse the decision. However, if it is per incuriam because of ignorance of a statutory or procedural provision the exception is required to allow the Court not to be bound.Morelle v Wakeling [1955]
Evershed MR defined the per incuriam exception as applying to
.. decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned...
.Duke v Reliance Systems Ltd [1988]
Lord Donaldson MR stated that a decision is per incuriam only if the court must have reached a different conclusion, might is not sufficient.
Williams v Fawcett [1986]
Claimant was imprisoned for breach of a non-molestation court order. However, the paperwork failed to specify the breaches or to grant an adjournment.
It was held that a person could not be committed to prison for breach of a non-molestation order unless the notice had been signed by the 'proper officer' of the court. Such a requirement was not part of the statute or the procedural rules.
Therefore, previous decisions were per incuriam, an error which had been followed in a number of cases.
Rickards v Rickards [1990]
Lord Donaldson MR:
.. The importance of the rule of stare decisis in relation to the Court of Appeal's own decisions can hardly be overstated. We now sometimes sit in eight divisions and, in the absence of such a rule, the law would quickly become wholly uncertain. However the rule is not without exceptions, albeit very limited. These exceptions were considered in Young v Bristol Aeroplane Co. Ltd. [1944], Morrell v Wakeling [1955] and, more recently, in Williams v. Fawcett [1986].
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These decisions show that this court is justified in refusing to follow one of its own previous decisions not only where that decision is given in ignorance or forgetfulness of some inconsistent statutory provision or some authority binding upon it, but also, in rare and exceptional cases, if it is satisfied that the decision involved a manifest slip or error... -
Balance
It has been argued that the need for balance could provide an opportunity for a further exception.
Davis v. Johnson [1979]
Lord Diplock:
.. In an appellate court of last resort a balance must be struck between the need on the one hand for the legal certainty resulting from the binding effect of previous decisions, and, on the other side the avoidance of undue restriction on the proper development of the law. In the case of an intermediate appellate court, however, the second desideratum can be taken care of by appeal to a superior appellate court, if reasonable means of access to it are available...
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Court of Appeal: Criminal Division
As a general rule the Criminal Division decisions are binding on all the courts below it in criminal cases and the division is usually bound by itself. All the exceptions which apply to the Civil Division apply to the Criminal Division. The Criminal Division has a further, wider discretion where the liberty of the individual in question.
R v Gould [1968]
Diplock LJ: .. if upon due consideration we were to be of the opinion that the law had been either misapplied or misunderstood in an earlier decision... we should be entitled to depart from the view as to the law expressed in the earlier decision notwithstanding that the case could not be brought within any of the exceptions laid down in Young v. Bristol Aeroplane Co. Ltd...
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If case is not within the exception rules set out in Young v Bristol Aeroplane, a full court (five members) may be convened to consider the matter.
Divisional Courts
Most cases go to the Divisional Court of the Queen's Bench Division, which hears applications for judicial review and some appeals from inferior courts. Its decisions are binding on the High Court, and High Court decisions are not binding on it.
The Divisional Court is bound by its own decisions subject to the same exceptions as the relevant, civil or criminal, division of the Court of Appeal.
R v Greater Manchester Coroner, ex parte Tal [1985]
In an application for judicial review the Divisional Court may depart from an earlier decision if it considers that it was wrong.
The rationale is that judicial review cases are analogous to that of a judge at first instance.
High Court
The High Court considers the more serious civil matters. Decisions of individual High Court judges are binding on the County Courts but not on other High Court judges.
To uphold certainty High Court judges tend to try not to depart from previous decisions of the High Court. However, in a seeming reversal of the doctrine of precedent, in a number of cases it has been suggested that where a first case has been fully considered (but not followed) in a second case, later judges should normally prefer the second case. As the doctrine does not apply this approach does to some extent provide certainty.
Crown Court
Crown Court is not bound by its own previous decisions, but in the interests of certainty in criminal matters, is strongly persuaded by them. Juries sit in many of the cases and therefore it is only the judge's decision on points of law which are relevant and are rarely reported.
Inferior Courts
County Courts and Magistrates' Courts are inferior courts. Inferior courts do not bind any other courts and are not bound by their own decisions.
There are hundreds of courts of the first instance throughout country, most cases are not reported and no central record is kept. Therefore it would be impossible for each court to be bound by one another, however, there is some attempt for courts to be consistent with themselves.
Human Rights Act 1998
The Act has a major impact on the doctrine of precedent. It means that judges are bound by case law which applies the Act rather than previous interpretations of existing legislation.
Human Rights Act 1998
Section 2(1):
A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any-.
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(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights, .
(b) opinion of the Commission given in a report adopted under Article 31 of the Convention, .
(c) decision of the Commission in connection with Article 26 or 27(2) of the Convention, or .
(d) decision of the Committee of Ministers taken under Article 46 of the Convention, .
whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen
These judgments are considered highly persuasive but not formally binding.