Essay on Binding Precedent

Binding Precedent

The English Legal System is hierarchical whereby the decision of a higher court binds lower courts. The doctrine of binding precedent, stare decisis, (stand by things decided) is at the core of the legal system. The Superior Court is at the top of the legal pyramid and its decisions bind all lower courts, except on civil cases involving European law where the European Court of Justice is the court of last resort. Below the Superior Court, we have the Court of Appeal, and it is generally bound by its decisions. Next, there is the High Court, which consists of the three divisional courts, and the ordinary High Court. The hierarchical nature is further reaffirmed in the High Court where it is bound by previous rulings of both the House and Court of Appeal, and its own decisions bind inferior courts. All the above courts bind the Crown Court in turn, it does not form binding precedent and decisions can serve as persuasive precedent. This then leaves the County and Magistrate Courts. These courts, apart from being bound by higher courts, do not make any precedent be it binding or persuasive.

To comment on the system of binding precedent an understanding of binding precedent is required. The principle of stare decisis, came from the establishment of a centralized government in 1066 during the reign of William the Conqueror. The different customs throughout England were brought together and sifted to give a consistent set of rules. This gave rise to common law. When a new problem of law came before the courts the decision then formed a binding precedent for future cases. Over many years the system of common law based on binding precedent gave a hierarchy of precedent. Only the rule of law sets precedence. There are two main sections of a case first is the ratio decidendi (the rationale for a decision). This is the rule of law and is the “statement of law applied in deciding the legal problem raised by the concrete facts of the case”. Second, is obiter dictum, (said in passing) that which is said by the way, it does not form part of the binding precedent serving as a persuasive authority. Over time the common law has evolved and we have a hierarchy of courts that we all know today. It is important to note however that common law is not the most widespread system as those countries that have a written constitution have a civilian system. And it is the civilian system that is found in the majority of countries.

The system of binding precedent operates in the English Legal system through a hierarchical pyramid. The higher the court, the more authority it has. The Supreme Court, as well as being the final court of appeal, plays an important role in the development of United Kingdom law.

As an appeal court, The Supreme Court cannot consider a case unless a relevant order has been made in a lower court.

The Supreme Court:

• is the final court of appeal for all United Kingdom civil cases, and criminal cases from England, Wales and Northern Ireland

• hears appeals on arguable points of law of general public importance

• concentrates on cases of the greatest public and constitutional importance

• maintains and develops the role of the highest court in the United Kingdom as a leader in the common law world

Prior to 1st October 2009, the House of Lords was the highest court, “its judgements were the most important source of case law”. Where European civil law is involved, The European Court of Justice can and had overruled the House. The important difference being both European Court of Justice and European Court of Human Rights are not bound by binding precedent like the House of Lords. Up until 1966 the decision of the House was final and binding not only on lower courts but also on itself, on the basis that “the highest court in the land should be…a finality in litigation”. However due to the rigidity of this and the potential for injustice it created, in July 1966 the practice was changed. House of Lords were no longer bound by its own decisions. The significance of this was that the House was able to adapt to social change and superior commonwealth courts. Since 1966 where an appellant has grounds to question against a previous decision, showing a material change of circumstances, the plea will be considered. It is very important to note that this power is used sparingly.

Next in the hierarchy there is the Court of Appeal. It is bound by the superior courts decisions, and is generally bound by its own decisions. In the first instance, where there is conflict, the later court then has to decide which precedent to follow. Secondly, there is express or implied overruling. This is where the superior Court overrules Court of Appeal precedent, and the Court then follows the Superior Court over its own precedent. Therefore this reaffirms the Superior Court as being the Supreme Court in the English Legal System. Not only does it overrule the Court of Appeal, but also because of the doctrine of binding precedent the Court must then follow the expressed overruling of the Superior Court. Thirdly, where a previous decision was given per incuriam.(given in ignorance) of some authority, that was it considered would have led to a different decision Thus the Court does have the power to hear the appeal and remedy the earlier misunderstanding. The Court is bound by the doctrine to follow the rulings of the Superior Court and be bound by its own judgments. The Court of Appeal does have the ability to depart from stare decisis provided it can be justified using the exceptions looked at earlier.

These rules of exception apply to both civil and criminal divisions. With the difference that in criminal division a court can depart if the previous decision is against the defendant “ on the grounds that the liberty of the person is at stake”. Thus, where a misapplication is identified, the courts are not bound to follow precedent on a hierarchical basis. There are other exceptions, which allow the court to deviate from precedent. These are: if there is ambiguity in distinguishing the point of law, where precedent outdated and superseded by more recent decisions and where the precedent is given a narrow ratio decidendi. Also, it is the later judges who decide what part of a case is the rule of law, and there can be some uncertainty to what extent of the case is ratio decidendi and what is obiter dictum. This then leaves scope to what the judges are obliged to follow.

The next court in the hierarchy is the High Court. The High Court is a composition of the Ordinary High Court and the divisional courts. Courts superior binds the High Court, and decisions of the High Court judges are in turn binding on lower courts. However, the decisions made here are not binding on other High Court judges. Bearing this in mind, and to maintain a level of consistency, where there is a conflict in the ruling, the judges are to follow the latter. This then ensures “certainty in the law, the latter decision is to be preferred providing it was reached after full consideration of the earlier decision”. The divisional courts are located within the three divisions of the High Court. They are; Queens Bench, Family and Chancery. In civil cases the courts can use the exceptions from the Young case. In criminal appeal cases and judicial review cases, the Queens Bench Divisional Court can refuse to follow stare decisis (stand by that which is decided) if the decision is wrongly made.

This then leaves the inferior courts of the hierarchy. The Crown Court, County and Magistrate Courts. The Crown Court in turn is bound by all the courts above it, it does not form binding precedent and decisions can serve as persuasive precedent. The decisions are of a persuasive authority when High Court judges sit in the Crown court and must be given serious consideration in subsequent cases. Where there are circuit or district judges, no persuasive precedent is formed. As the Crown Court cannot make binding precedent it cannot be bound by its decisions. This then leaves the County and Magistrate Courts. These courts, apart from being bound by higher courts, do not make any precedent be it binding or persuasive, and like the Crown Court cannot be bound by its own decisions. There is no publication of reports of cases dealt with by the inferior courts.

The English Legal System however is not entirely based on a common law system. Where an analogous precedent cannot be found a court can use Books of Authority. A judge can refer to certain legal textbooks for guidance, which are considered to be authoritative sources of law.