English Legal System

Question 1

In the hierarchical structure of the English courts, the decision of a higher court is binding on a court below it. This is the basis of the doctrine of precedent, also referred to in its Latin form stare decisis or ‘let the decision stand’, which is central to the English legal system.

At the top of the hierarchy is the Supreme Court, formally the House of Lords. Decisions made in this court are binding on all other courts. Until 1966 it was bound by its own previous decisions however, this changed when the Lord Chancellor issued Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 which stated the intention to depart from previous decisions when it appeared right to do so.

Although the Supreme Court is recognised as the highest English court, decisions made in the European Court of Justice bind all UK courts by virtue of ss. 2 and 3 of the European Communities Act 1972.

Decisions of the European Court of Human Rights are not binding on UK domestic courts, however, they are persuasive and a UK court can choose to follow a decision if it considers it just to do so. Likewise, decisions from the Judicial Committee of the Privy Council are highly persuasive but not binding on English courts.

The Court of Appeal is below the Supreme Court in the hierarchical structure and is split between the Civil and Criminal divisions. Decisions in both divisions bind lower courts and normally themselves but the Civil division is subject to exceptions to this rule as defined in Young v Bristol Aeroplane Co. Ltd (1944) (CA). These exceptions are:

Where there is a conflict between two previous decisions. The court must decide which decision to follow and which to overrule.
Where a previous decision has been overruled by the House of Lords (Supreme Court), the Court of Appeal must follow the decision of the superior court.
Where its previous decision was made per incuriam meaning ‘through carelessness’ i.e. that a previous decision was made in ignorance of some authority which would have led to a different conclusion.

A further exception than those cited in Young is the effect of s 3 of the European Communities Act 1972. This could allow the Court of Appeal to ignore a previous decision that is inconsistent with EC law or later decision of the ECJ.

It is acknowledged that in practise the Criminal division has more discretion in its obligation to follow precedent, as the liberty of an individual is at stake. If it is apparent that a previous decision has been based on either a misunderstanding or misapplication of the law, a court in the criminal division is not bound to follow a previous decision.

The Divisional Courts are located within the three division of the High Court, the jurisdiction of which is mainly appellate. They are bound by the doctrine of stare decisis following decisions from the Supreme Court and the Court of Appeal. Divisional courts are above the High Court in the hierarchy and as such the decisions of these courts bind the ordinary cases of the High Court and also themselves with the exceptions in civil cases as cited in Young. In criminal appeal cases, the Queens Bench divisional court may refuse to follow previous decisions if they are judged to have been made wrongly as in R v Greater Manchester Coroner ex p Tal (1984) 3 ALL ER 240.

The High Court is bound by decisions of those courts superior to it. Although decisions by individual high court judges have a strong persuasive authority on other high court judges, they are not binding on them. If two individual previous decisions are at variance, it is generally accepted that the latter decision should be followed, if the latter decision considered and provided grounds for not following the prior decision. This was established in Colchester Estates v Carlton industries plc (1984).

Crown Courts are subject to binding precedent from superior courts but do not create precedents themselves and are not bound by their own previous decisions although their decisions are considered persuasive authority.

Magistrates and County courts do not bind any other courts and are not bound by their own decisions.

Factually, it is not the decision that is the binding element but rather the legal reasoning for the decision based on the facts of the case. This is known as the ratio decidendi of a case or ‘reason for deciding’. The ratio is the important part of a judgement as far as case law is concerned. This is the part that is binding on subsequent cases where the material facts are the same. Any part of the judgement that does not from part of the ratio is called obiter dictum or ‘a statement by the way’ and does not form part of the binding precedent.

The ratio of a judgement is determined by the judge of a subsequent case who relies on an extensive system of reporting from previous cases. This is where the bindingness of the doctrine of binding precedent can be said to be more apparent than real. Because the ratio and the obiter are not specifically identified in a judgement by the deciding judge/s, this gives discretion to later judge who may choose to avoid the precedent for his own reasons. A precedent can be avoided by declaring the statement to be obiter.

Further scope for not following a precedent is by distinguishing, whereby a later court decides that the previous ratio is too obscure, too wide or not on all four with the present case. Thus, it will not consider itself bound by precedent and may come to its own different conclusion. Although not a common occurrence, a court may also overrule a previous decision whereby a court sets aside a decision of a previous court. An example of this can be seen at R v R (1992) where the court changed a century old rule now recognising that rape within marriage was an offence. Theses procedures could be considered as a way of developing the law but an alternative claim is that the judiciary are going beyond their constitutional role and instead of applying the law are in fact making it.

Question 2

The Crown Court is the principal venue of jury trials in criminal cases. The notion that the jury system provides an opportunity for the layman to participate in the administration of the legal system has to be considered against the fact that the Magistrates court hears 95% of all criminal cases and of those actually heard in the Crown Court, less than 1% are determined by a jury as the majority of defendants plead guilty prior to trial.

All eligible persons are expected to serve on a jury when called and non attendance, when issued with a jury summons, is punishable with a possible £1000 fine.

A jury consists of twelve members chosen at random from the information held on the electoral register. A predetermined number of individuals are summonsed to attend by a court official and from that number, a panel of fifteen are chosen at random for each case and taken to the court room where twelve are chosen by a ballot in open court. Jurors can be dismissed if incapable of acting through illness but in accordance with the Juries Act (JA) 1974, a jury must consist of at least nine members.

Eligibility to become a juror is defined by the Criminal Justice Act (CJA) 2003. Any person between the age of 18 and 70, who is on the electoral register and has lived in the UK for at least five years since the age of 13 is eligible to sit. This includes Judges, JP’s, members of the legal profession, police, probation officers and clergy who prior to CJA 2003 were ineligible. Persons suffering from mental disorder are still ineligible sit as before. Others groups are disqualified including those on bail and those who have served a prison sentence of five years or more or persons who have received prison sentences, suspended sentences or community service orders within the last ten years.

The CJA also repeals s 9(1) of the JA which excused certain persons from service as a right including members of the medical profession, MP’s, members of the armed forces and anyone over 65years of age.

Four reasons for application for excusal from jury service are stated in Practice Direction (criminal: Consolidated) {2002} 1 WLR 2870 para 42. Those are (a) personal involvement in case (b) close connection with a party/witness (c)personal hardship (d) conscientious objection to service.

The composition of juries can be challenged by both the prosecution and defence under s 12(6) of the JA 1974 on the ground that the person responsible for summoning the jurors in question is biased or acted improperly. The CJA 1988 abolished the rights of the defence to object to potential jurors on peremptory grounds or in other words without cause. A challenge on any number of jurors for cause i.e. reason, can still be made. An example of cause could be where a juror has had dealings with the defendant in the past. Jurors can not be disqualified on the grounds of race, religion, politics or occupation.

The prosecution on the other hand, in addition to challenge for cause can request particular jurors to ‘stand by’ unless there are insufficient numbers to make up a jury from the panel. This right, in causing an imbalance between the rights of the defence and those of the prosecution led the Attorney-General to issue a practice note curtailing the extent.

Potential jurors are vetted according to guidelines published by the Attorney-General. Generally the guidelines support the notion that juries should be selected randomly with the only exclusions being those defined in the JA Act 1974. Guidelines further support the use of special branch and the security service records in cases involving national security and terrorists trials. In addition to the guidelines, the Court of Appeal in R v Mason (1980) approved the procedure of checking the criminal records of possible jurors for criminal convictions.

The role of the jury is to decide the guilt or innocence of a defendant on the facts of a case put forward. Jurors can ask for direction from the judge with a view to understanding and applying the law in consideration and this advice must be given in open court. The judge can direct the jury to find the defendant not guilty if he believes there is insufficient evidence but cannot direct them to convict. He can sum up the case, before the jury retires, in such a way that the jury are fully aware that anything other than a guilty verdict would be perverse but without putting undue pressure on the jury.

The best position is that decisions are made unanimously by the jury, however, the CJA 1967 introduced majority decisions to the extent that a verdict would be accepted where at least ten jurors agree on a jury comprising of not less than eleven members or nine on a jury of ten.

There is no doubt that the jury system provides an opportunity for the layman to participate in the administration of the legal system however, whether this is reassures the rest of us that justice is being done in individual case is another matter. There is a wealth of evidence that the decisions of juries in the past have not always been based on the facts of the case put forward but have been decided on other grounds such as racial prejudice as in the aftermath of R v Qureshi (2001). S 8 of the Contempt of Court Act 1981 prevents any disclosure or investigation from deliberations in the jury room. If this were not the case then every decision could be open to further debate. The danger of the act is that perverse decisions result such as that in R v Clive Ponting (1985) where it was irrefutable that the judge considered the defendant was guilty under the Official Secrets Act 1911 but the jury found the defendant not guilty and similarly in R v Kronlid (1996), relating to criminal damage to jet fighters due to be shipped to Indonesia.

Decisions such Ponting and Kronlid appear to be based on the laypersons philosophy of justice and not necessarily on the facts of the case. If cases such as these had been tried without a jury then it has been proposed that a different conclusion would have been reached by the professional judiciary. The jury system can therefore be considered to act as a restraining influence on the professional judiciary whereby cases which, in the laypersons eyes, require a more sympathetic understanding than the sometimes rigidness of the appropriate law.