English Law and Doctrine Called Binding Precedent

A precedent is a judicial decision which contains in itself a principle. English Law is based on a doctrine called binding precedent. The fundamental principle on which the doctrine of precedent is based is known as stare decisis – let the decision stand. Any previous decision of a higher court is binding on judges in lower courts, unless there are reasonable grounds for distinguishing the case on its facts. The doctrine does not only have a vertical effect. It also has a horizontal effect i.e. some courts are not only bound by the decisions of superior courts but also by their own previous decisions.

The House of Lords stands at the summit of the English Court structure and its decisions are binding on all courts below it in the hierarchy. With regards to the horizontal application of the doctrine, it may be stated that the House of Lords was bound by its own pervious decision until 1966. This practice was established in the mid 19th century and reaffirmed in the London Street Tramsway v London County Council [1] [1] in 1898. The rationale for this was that the decisions of the highest court in the land should be final in order to maintain certainty in the law and to put an end to litigation. However after increasing criticism the House of Lords freed itself from the self imposed restraint by a practice statement from then Lord Chancellor, Lord Gardiner. He stated that the House of Lords would in future regard itself free to depart from its previous decisions where it appeared right so to do. The practice statement contained the reasons for freeing the House of Lords; in the interest if justice and to allow proper development of the law, in order to adapt English Law to meet changing conditions, to take into account the decisions that have been given in the Commonwealth Countries and to keep in line with other countries of the world. It should be noted that, given the potentially destabilizing effect on existing legal practice based on previous decisions of the House of Lords, this is not a discretion that the House of Lords exercises lightly.

The next court in the hierarchical structure is the Court of Appeal. The Court of Appeal is bound by the decision of the House of Lords. Although the Court of Appeal, notably under the aegis of Lord Denning, attempted, on a number of occasions, to escape from what it saw as the constraints of stare decisis, the House of Lords repeatedly asserted the binding nature of its decisions on the Court of Appeal in cases such as Broome v Cassell [2] [2] and Miliangos v George Frank (Textiles) Ltd [3] [3].

In order to consider the horizontal application of the doctrine in the Court of Appeal, it is necessary to consider its civil and criminal jurisdiction separately.

The Court of Appeal in a civil case is generally also bound by its own previous decision. However there are a number of exceptional situations where the Court of Appeal is not bound by its own previous decision as explained by Lord Greene MR in Young v Bristol Aeroplane Co Ltd [4] [4].:

1.      where there are two conflicting Court of Appeal precedents on the issue;

2.      where a Court of Appeal decision is inconsistent with a House of Lords’ decision; and

3.      where a Court of Appeal decision appears to have been decided ‘per incuriam’, without due care, and is consequently erroneous.

The Court of Appeal (Criminal Division) may follow the same guidelines as the Civil Division, but is also entitled exercise a more generous discretion to depart from one of its own decisions where it is convinced that such a case was wrongly decided and would cause hardship if followed in a case where a citizen’s liberty is at stake (R v Gould [5] [5]).

Once again there was an attempt by the Court of Appeal under Lord Denning to widen these exceptions as in Gallie v Lee [6] [6] but again the House of Lords reaffirmed the limited nature of these exceptions and reasserted the strict operation of the doctrine of stare decisis.

Further down the hierarchy, the High Court is bound by the decision of the House of Lords and the Court of Appeal. The decisions by individual High Court judges are binding on courts inferior in the hierarchy. 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 Court cannot create precedent and their decisions can never amount to more than persuasive authority. The decisions of county courts and magistrates’ courts are never binding.

The aforesaid has laid down the doctrine of binding precedent as it operates in theory to control and indeed limit the scope of judicial discretion. However it has to be understood that the doctrine does not operate as strictly as it appears at first sight. There are a number of particular weaknesses in the hierarchical structure that have to be addressed in evaluating the undoubted advantages with the equally undoubted disadvantages.

The following of precedents is a convenient time saving device as inferior courts have guidelines to follow. Judges do not have to analyse too much work and they do not have to look at minor details.

The second advantage proposed is that it creates certainty in the law. Examples where certainty has been emphasized is the London Tramsway Case, the Practice Statement and the reason why Lord Denning’s crusade met failure.

Another advantage put forward is that of consistency. This refers to the fact that like cases are decided on a like basis and are not apparently subject to the whim of the individual judge deciding the case in question. This aspect of formal justice is important in justifying the decisions taken in particular cases.

However all of these advantages have a converse disadvantage.

Firstly the advantage of saving time has the disadvantage that judges start giving decisions mechanically and therefore do not use their minds to a possible distinction between the two cases.

The advantage of consistency has the disadvantage that the law in relation to any particular area may become ossified on the basis of an unjust precedent with the consequence that previous injustices are perpetuated. An example of this is the long delay in the recognition of the possibility of rape within marriage, which was after a long time recognized (R v R [7] [7]). As C. K. Allen said “error is error and should not be allowed to spread its roots”. Professor Goodhart stated that “certainty is desirable only to a certain extent”.

With regards to certainty it can be stated that the degree of certainty provided by the doctrine of stare decisis is undermined by the absolute number of cases that been reported and can be cited as authorities. The uncertainty is increased by the ability of the judiciary to select which authority to follow through use of the mechanism of distinguishing cases on their facts. A further element leading to uncertainty has been highlighted by James Richardson, the editor of Archbold (195), the leading practitioners’ text on criminal law, who has claimed that the lack of practical experience of some judges in the Criminal Appeal Court is:

… compounded by an apparent willingness, on occasion, to set aside principle in order to do what the court feels to be right (either way) in the individual case.

As Richardson suggests:

In the long run, this can only undermine a system which claims to operate on the basis of a hierarchy of binding precedent.

Furthermore a major disadvantage is that the operation of the doctrine of binding precedent is dependant on the existence of an extensive reporting service to provide access to judicial decisions. The advent of fixed system of precedent developed with the increased reporting of cases in the printed law reports of the eighteenth century, culminating with the foundation of the Incorporated Council for Law Reporting in 1865. Then came the major commercial series such as the All England Reports and the Criminal Law Review.

This weight of material has been aggravated by the use of computer technology in that LEXIS and LAWTEL have eased the finding of cases but increased the quantity of cases reported. All cases decided in the High Court and above are part of the precedent system and all could in theory be, if relevant, cited in court. The House of Lords has now said that only printed cases reports will now be accepted in argument before them unless the unreported cases raises a genuinely original point of law (Robert Petroleum Ltd. v Kenny Ltd [8] [8]) Nevertheless the number of reported cases is so large that the law can be ascertained only by searching through a large number of reports. Moreover it has always been a problem to distinguish the point of law from a case which simply is decided on the basis of a slight difference of facts.

With the increasing quantity of cases it is now difficult to say how this system of binding precedent can continue to survive. The concept of stare decisis will, it is submitted, crack under the strain. Moreover, with the UK’s membership of the European Union and the desire to make uniform the laws of the community it is a major stumbling block if the legal philosophy of the UK is at variance with those of the Continental countries. The Continental codified system of law has the virtue of clarity and of being contained in a specific number of texts. It is not only a major expense to collect together the major law reports but there are problems of storage and of information retrieval thereafter. A long decided case does not die but the principle it states is gradually restated in newer law. It might be reasonable to codify some of the older cases as it is rare for the courts to refer to the older reports directly.

Whether judges rely upon the system of precedent to perpetuate the judicial myth that the judges do not make law but only declare it is doubtful these days. It does enable a judge to say that his hands are bound by the existing law, thus taking from himself the opprobrium if having to take decisions in his own name, and the doctrine of precedent is therefore a useful way to distance himself from the decision making process. But impartiality is still possible to achieve where the judge is able to depart from his previous decisions. The House of Lords has already taken upon itself this right, in the Practice Statement of 1966, but it is clear that this freedom is not intended to give similar right to other courts. Certainly, Lord Denning, when Master of the Rolls, expressed his disappointment about the lack of freedom which the Court of Appeal has (and the need for a litigant to appeal to the House of Lords does not solve the problem as many litigants are either unwilling or unable to do so).

Lord Denning felt that the rigidity of precedent should give way to justice where the two were in conflict as it is unrealistic for the judges to say that the law must be left to Parliament to change but there is already a tendency for this to happen anyway.

The tribunal system which undertakes a large amount of work, is not so greatly bound by the concept of precedent and this individual cases can be considered on their merits. It may be that this the way for the courts themselves to go. In Continental jurisdiction it does not appear that there is a kind of judicial free-for-all as the judges of junior tribunals tend to follow the directions of their seniors because there are usually the most sensible decisions. A judge who was too wild in his decision making would not go far in the hierarchy.

The value of having a central code may be great and it is not necessarily a matter of mere arbitrariness if judges are allowed a freedom to interpret it.

Now might be a good time to examine this issue before the problems of precedent become so great that it is too late to cope with them easily. The real difficulty is in the nature of the expansion of so many things which have happened over the last century. The problems of keeping up to date are going to increase rather than decline and there must be some way of halting the mountains of legal decisions which bear down the practitioner. Precedent has always had the danger of being made complex by the judges’ wishes to distinguish cases where they wish to avoid a previous decision but are not in the position to overrule, consider it obiter, per incuriam or one of the other exceptions to the general rule as given in Young v Bristol Aeroplane Co [9] [9]. If precedents were only persuasive they would continue to give the necessary guidance without the concomitant of tying the hands of the judge and producing bad law.

Therefore it can be stated that the doctrine of binding precedent has in fact slowed down the pace of change in the English legal system and the very advantages of binding precedent have become disadvantages. The methods available to a judge to avoid following a wrong decision are insufficient as can be well illustrated in the Paul Wilson & Co. A/S v Partenreederei Hannah Blumenthal [10] [10] case, where Lord Denning did not want to follow Bremer Vulkan Sciffbau und Maschinenfabrik v South India Shipping Corpn Ltd [11] [11] and tried to distinguish it. The House of Lords reversing Lord Denning’s decision on the ground that Bremer Vulkan and Paul Wislon could not be distinguished. Even when the decision of the House of Lords is per incuriam, the Court of Appeal can face a difficulty in not following the decision of the House of Lords as a lower court cannot state that the decision of a superior court was given per incuriam. The inflexibility of following wrong decisions of the House of Lord by the Court of Appeal was strongly felt by Lord Denning in his campaign and in my view the Court of Appeal should be given greater freedom to depart from obvious and glaring mistakes of the House of Lords, otherwise the doctrine of Binding Precedent will surely continue in many cases to result in injustice and slow down the pace of change in the legal system even in those situations where there is a desirability of change.