Judicial Precedent

To what extent are judges bound by precedent and is it desirable that they should be? - Justin Santiago

Judicial precedent based on stare decisis (let the decision stand) stands on two fundamental limbs. Firstly, once a decision is made on how the law applies to a particular set of facts, similar facts in later cases will be treated in the same way. This follows the declaratory theory of law that states that judges do not make law but merely by the rules of precedent, discover and declare the law that has always been. The second limb of the rule states that the decisions of superior courts bind lower courts and courts of equal status. The principle entrenches the courts structure and the hierarchy of the courts.

The rules of precedent produces an element of consistency and predictability whenever a court at a particular level decides on a case. Without these rules, judges would have a free hand in deciding cases which flies in the face of parliamentary sovereignty and the separation of powers.

The rules of precedent ensure that complications do not arise out of the different effects of retrospective and prospective overruling of which the application is still unclear once a decision has been overruled. A scenario where cases starts overruling each other and a decision in the lower courts overrules a decision in the higher courts would lead to absolute chaos. People would not be able to conduct their affairs as they would not have an understanding of the state of the law at any one time.

The use of precedent balances the fine line between certainty and flexibility in the law. Judges are bound by precedent in so far as providing them with a markers to decide on cases. This enforces the doctrine of the separation of powers and it is the role of courts to interpret the law and not to make the law leaving that job to Parliament. There is little time for Parliament to catch up and we are beginning to see a judiciary with a more robust role in law making without waiting for Parliament to act : Kleinwort Benson Ltd v Lincoln City Council and DPP v Jones which concerned long entrenched laws that would have rightly been amended by legislation.

However judicial precedent needs to import an element of flexibility to allow for the evolution of the law. Changing social norms and developments in social life may require flexibility to judicial precedent. This of course helped develop the law and at times gave rise to legal principles - the oft quoted neighbourhood principle in Donoghue v Stevenson being a case in point and the requirement of virtual certainty of death or grievous bodily harm to indicate intention in murder as decided by R v Woolin.

Judges have also been influenced by external circumstances in their decision not to follow precedent. Some of the examples where the Lords have departed from their own decisions have been based on changes in perception of public policy. In the case of British Railways Board v Herrington the development of the law of negligence shifted the burden of the duty of care to the railway authorities to have their line fences mended. In Miliangos v Gorge Frank (Textiles) Ltd changes in international trade and the statue of the sterling forced the House of Lords to review earlier decisions that all awards of damages in an English court be made in sterling. The courts could also choose to not follow a precedent which is no longer in step with the roles of individuals in society : R v R where the House of Lords overturned a centuries old common law rule that rape within marriage was not a crime.

Application of the law or statute to a particular case is not usually a simple matter. Terminology may be vague or ambiguous. There could be minor differences in details of the facts of the case under consideration from those of the previous case. This is where a judges’ discretion is usually required and it may appear that the doctrine of stare decisis is not followed to the letter. Other ways that judges would try to influence the decision of the current case would be by giving the precedent a very narrow ratio decidendi thus arguing that parts of the judgement are merely obiter dicta which they are not obliged to follow, arguing that the precedent has no clear ratio decidendi. They could also sidestep precedent by stating the previous decision was made per incuriam meaning that the courts failed to considers some relevant statute or precedent.

Additionally with UK law having to take EU law into account the rules of precedent are given a wider meaning and decisions by the ECJ and EtCHR may need to be followed instead of decisions by the domestic courts.

The second limb of the doctrine is followed more strictly especially if you are a lower court although some judges have tried to go around it. Lord Denning was one of these and in a number of instances was rebuked for trying to sidestep the court hierarchy. This was evident at the level of the Court of Appeal in cases like Broome v Cassell where a decision was contrary to the decision in the House of Lords case Rookes v Barnard. The justification was that the decision was made per incuriam. In the case of Shcorsch Meier GmbH v Hennin, Lord Denning again did not choose to follow the decision of the House of Lords case, Re United Railways of Havan and Regla Warehouses the reason being that the earlier decision was based on a rule that had lapsed. In Davis v Johnson, Lord Denning sought to apply the rationale that if the House of Lords could depart from previous decisions, the Court of Appeal could as well without wasting time and costs of further appeals to the House of Lords.

However in all 3 instances, Lord Denning was reprimanded by the House of Lords for making a decision which was rightfully the decision of the House of Lords. It appears that when it comes to following precedent it really matters which level in the hierarchy you are at. The House of Lords is itself not bound by its own decisions passed on the Practice Statement (Judicial Precedent) issued in 1966 which pointed that too rigid an adherence to precedent may lead to injustice and unduly restrict the proper development of the law. No such Practice Statement exists for the Court of Appeal.

Judges at the level of the House of Lords have been known to overrule their decisions some of which have been in existence for many years and this is no one principle by which the House of Lords sets about overturning its own decisions. R v Caldwell was for many years the authority on the level of recklessness (objective) required for non fatal injury crimes. However R v G (and another) overulled R v Caldwell and reinstated the decision in R v Cunningham which stated that subjective recklessness was required for these types of crimes. ReA (conjoined twins) overruled the long established law that necessity was not a defence to murder as decided in the case of Donald v Stevenson. Murphy v Brentwood District Council overturned Anns v Merton London Borough Council based on the rejection of this case by another jurisdiction. Examples such as these go to show that judges at the level of the House of Lords are not bound by previous decisions including those that have been the law for many years and there need not be a reason for doing so other than the fact that the previous case was unsatisfactory.

At the level of the Court of Appeal, they are generally bound by their own decisions. However as decided in Young v Bristol Aeroplane under certain circumstances judges are given some flexibility in making their decisions :-

1. Decisions that are in conflict with each other – in Starmack Enterprises Ltd v CPL Distribution, the latest authority was not followed
2. Decisions that have been overruled expressly or impliedly by the House of Lords
3. Decisions that are made per incuriam – in Morelle v Wakeling Lord Evershed limited the use of the per incuriam rule to cases where there was ignorance of authority which would have been binding on the court and that ignorance led to faulty reasoning

The decisions of other courts have begun to enter the picture and judges are seemingly more open to them. The Privy Council has had a strong influence on decisions by the other courts. Recently the Court of Appeal in R v Faqir Mohammed and later in R v James and R v Karimi preferred to follow the Privy Councils’ decisions in HM Attorney General for Jersey v Holley and Luc Thiet Thuan v R rather than the House of Lords’ decision in R v Smith (Morgan James).

A large amount of law has been case law made by judicial decisions notwithstanding parliamentary supremacy and the increasing use of statutes. Judges have their own mind and will want to maintain their free hand in interpreting and developing the law. The rules of judicial precedent act as a guidepost for judges at the level of the House of Lords to decide on cases. At the level of Court of Appeal and below the rules of judicial precedent acts as a gatekeeper to remind them of their station in life. The effects of precedent are becoming larger with other courts such as the ECJ and EtCHR beginning to come into the picture and it won’t be long before their decisions start having a strong influence on domestic law which would lead to an evolutionin the law.

In summary most judges tend not to veer too much from the doctrine of stare decisis. Only in exceptional cases at the highest levels i.e. House of Lords is there any semblance of going around this well entrenched doctrine.