Consider How the Doctrine of Binding Precedent Operates in the English Courts.

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The doctrine of binding precedent, or stare decisis is the heart of the English Legal System. It refers to the fact that within the hierarchical structure of the English courts, a decision of a higher court will be binding on a lower court. The House of Lords or the Supreme Court stands at the peak of the English court structure and its decisions are binding on all lower courts. And it should always have to bear in mind, that, as the UK is a member of the EC, and as the ECJ is the highest court, it is not bound by any higher court, the decisions of the ECJ is binding on the House of Lords and all the lower courts. The ECJ is not bound to follow its own previous decision. Also as a consequence of the HRA 1998 the decision of the ECtHR are now part of the jurisprudence of the UK courts. This means that it is possible that the superior courts will find it necessary to alter previous precedents where they have been generated without reference to the ECHR. The House of Lords was not bound by its previous decisions before 1898. But from 1898 –1966 it regarded itself as bound by its own previous decisions. In 1966 Lord Gardiner indicated in the Practice Statement (Judicial Precedent) of that year that the HOL would in future regard itself as free to depart from its previous decisions where it appeared right to do so. The next court in the hierarchical structure is the Court of Appeal. It has two divisions. (i) Civil division and (ii) Criminal division. In a civil case, the situation is that, the Court of Appeal is generally bound by previous decisions of the House of Lords. Broome v Cassell and Miliangos v George Frank (Textiles) Ltd. The Court of Appeal is generally also bound by its own previous decisions. As explained, however, by Lord Greene MR in Young & Bristol Aeroplane Co Ltd, there are a limited number of exceptions to this general rule. These exceptions arise where: (a)A previous decision of the Court of Appeal has been overruled (cancelled), either expressly or impliedly, by the HOL, in which case, the CA is required to follow the decisions of the HOL. (b)There is a conflict between two previous decisions of the CA, in which case, the later court must decide which decision to follow and, as a corollary, which to overrule. (c)If the previous decision of CA was wrong.

In addition to the above, there is also the possibility that as a consequence of s 3 of the ECJ 1972, the CA can also ignore previous decisions of its own which is inconsistent with EC law or with a later decision of the ECJ.

Courts in the criminal division are not bound to follow their own previous decisions. In the interest of justice they can depart from the previous decision.

Further down the hierarchy, the Divisional Court is bound by the doctrine of stare decisis in the normal way and must follow decisions of the HOL and CA. It is also normally bound by its own previous decisions, although in civil cases, the exceptions of CA is available (Young v Bristol Aeroplane Co Ltd), and in criminal appeal cases, the Queen’s Bench Division may refuse to follow their earlier own decisions where they find it to be wrong.

As regards the High Court, the decisions by individual High Court judges are binding on lower courts. Such decisions are not binding on other High Court judges, although they are of strong persuasive authority and tend to be followed in practice.

Although subject to binding precedent from superior courts, Crown Courts cannot create precedent and their decisions can never amount to more than persuasive authority.

The decisions of county court and magistrates’ court are never binding.

The operation of doctrine of binding precedent should not be thought that it is as hard and fast as originally appears. If a judge decides, for some reason that the facts in the case before him are so different from those of a previous similar case, he is at liberty to ignore the precedent and treat the case differently. He can decide the...
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