Describe the Operation of the System of Judicial Precedent and assess its Present significance in the Law of England.

There are many different sources of Law in England, which include statutes, case law, deligated legislation, custom and European Law. Each one of these sources has varying importance and this essay will be examining one of the major contributors to English Law, Judicial Precedent (or Case Law). Judicial Precedent can be seen as a process where by a judge must follow any decision that has been made by a higher court in a case with similar facts. “Precedent is the life blood of legal systems” and therefore this essay will follow how judicial precedent works within the various courts of England, and will be assessing whether it has a negative or positive impact on the Laws of England.

Since 1865 Law reports have been published under the control of the Incorporated Council of Law Reporting . These Law reports, as they are known, have priority in court as the judge who heard the case sees and revises the report before it is published. There are also other private reports such as the All England Reports which are also revised by the judges concerned with the case . These Law Reports make up the Case Law within the English Legal System. From these cases it is important to know what to take as precedent and what we can ignore in order to find the ratio decidendi. The ratio decidendi of a case is defined as principle of law used by the judge to arrive at his decision along with his reasons for doing so . A judge may also include statements that are obiter dicta which are statements that are said in passing. When a judge is deciding a case he does not usually distinguish between statements that are ratio decidendi and those which are obiter dicta, and therefore it up to subsequent judges to approve what the ratio decidendi of a case is. These decisions then form precedents which must be followed by other judges even if they disagree with them. Obiter dicta do not form precedents

Within the system of Judicial Precedent there lies a hierarchy of courts meaning that lower courts are bound by decisions made by higher courts. The House of Lords is the highest appeal court (excluding cases concerning European Law) and all courts are bound by its decision. Until 1966 The House Of Lords was bound by its own previous decisions, except where a previous decision had been made per incuriam . In 1966 the House of Lords declared that it was no longer bound by it’s own decisions. It is this declaration that helps to strengthen the idea of precedent in English Law, as before this declaration decisions had to be followed even though they were unfair or outdated. An example of a decision being overturned by the House of Lords is R v R (1991), which determined that rape within a marriage should be a crime. The Court of Appeal is the next highest court and it is bound by decisions made by itself and the House of Lords. Unlike the House of Commons the court of Appeal cannot overturn decision that it had previously and incorrectly made. In the case of Davis v Johnson [1978] 1 All.E.R 841 Lord Denning suggested that that the Court of Appeal should be able to overturn it’s previous decisions but he did not recive enough support . The Divisional High Courts bind the ordinary High Courts. Crown Courts and Magistrates courts are bound by all the other courts above them, and there decisions do not form precedents. However if High Court Judges sit on the Crown court their decisions may provide persuasive precedents for other cases.

Within the system of judicial precedent the House of Lords sets precedents that must be followed by all courts below it. However, it could be suggested that there is in fact no need for the House of Lords to even play a role in the system of judicial precedent for the following reasons. Firstly, any appeals from the High Court are appealed to the Court of Appeal who will decide whether to overturn a decision or not. So why is there a need for a further appeal court? The fact that in this country we have two appellate courts indicates that there is a degree of uncertainty about the court of Appeal decisions, and therefore the precedents set by them. This can be backed up by the fact that in 1988, the House of Lords reversed 40% of the decisions made by the Court of Appeal. Having two appellate courts means that a litigant can still win a case even if the majority of Judges are against them. For example if a high court judge plus three appeal court judges and two Law Lords of the House of Lord decide a case one way, they can still lose if three other House of Lords judges decide to rule the other way. If a precedent has been laid down by the Court of Appeal and has been followed by courts below it, then if the decision has then been reversed by the House of Lords all decisions made by the lower courts are not reversed in conjunction with the new ruling.

When assessing the significance of judicial precedent in England it is important to examine other countries to see if and how they apply it to their systems of Law. French civil and penal codes are theoretically complete in the sense that they are supposed to cover every situation with which the courts are concerned , however it is still the responsibility of the Judges to apply these codes to material facts of cases. The previous case law in France is not considered binding on future judges, merely persuasive. If there is a trend in recent decisions on a particular point then under the doctrine of jurisprudence constante the precedent is elevated to an authoritative source meaning it becomes part of their law . This system of case law means that courts do not have to follow precedents laid down before judges before them, unless several judges at different times agree upon the same point of law. This is a good system that could be adopted by English law for the following reasons. Firstly, this system will mean that mistakes made in English Law like R v Millis (1844)10 CL, could be avoided. R v Millis set a precedent that an ordained priest is essential to a common law marriage which meant that in a later case of Beamish v Beamish (1861) 9 H.L.C, Lord Campbell had to follow this decision. This was even though he disagreed with the decision he had made and he went on to say ‘ I ask your Lordships to reconsider the doctrine laid down by R v Millis’. This shows that a major flaw in the system of precedent up to the 1996 declaration by the house of lords in which they could overturn any previous ruling.

It is fair to say that judicial precedent has considerable significance within the laws of England, however it is important to asses whether this significance is justified, and whether judicial precedent plays to much of a major part in English Law or whether its current position is adequate.

The system of judicial precedent can be seen as a good system for the following reasons. Firstly, judicial precedent provides a good deal of certainty. This means that the result of a case brought forward by litigants can be reasonably predicted if a previous case with similar facts had a particular outcome. However there is uncertainty to this in that there are many ways in which judges can avoid binding precedents. For example, the ratio decidendi of a previous case may be very narrow, meaning that the material facts of the previous case were very specific in a Judges summation, and therefore cannot be applied easily to future cases. Another example of how Judges can avoid following precedents is to simply state that the material facts of the case were in some way different to the case heard before. This can be shown by the case of Farr v Butters [1932] 2 K.B 606, in which a workman died due to a faulty crane being sold to his employers in parts by the crane manufactures. Lord Justice Greer held that a similar case of Donoghue v Stevenson [1932] A.C 562 could not be considered for a precedent in the case of Farr v Butters. This was because negligence had occurred on the part of the workman when constructing the crane, and the manufactures were not liable for this, where as they were in Donohue v Stevenson, as the products were sold to the consumer already faulty.

When looking at Judicial Precedent it is important to also examine the Judges making the decisions. It is fact that Judges are overwhelmingly white male and middle to upper class , meaning that Judges are not representative of England’s population. It has been argued by Griffith that Judges make decisions based on public interest, but this interest has been coloured by their background of a public school and Oxford education. In accordance to Griffith judges have ‘a dislike for trade unions and a tenderness for private property’, which implies that many judges will have a biased in cases related to these matters which seams to suggest that the system of Judicial precedent is unfair. However it can also be said that judges do not make law, they mealy interpret statue that has been made law through Parliament. Parliament contains the House of Commons which is appointed by the electorate, and therefore it could be said that it is more representative of the population and hence it would not pass Laws that the electorate would disagree with. Many statues passed by Parliament “can never be so precise as to leave no scope for differing interpretations” ; therefore it is still left to judges to apply statues to cases as they see fit. This system therefore relies on a judge’s impartiality, but it appears there is no better system.

Overall it is important for judges considering the case before them, to consider the decisions of Judges made in previous cases with similar facts. The system of Judicial precedent within the Law of England still remains highly significant. Its significance still remains largely due to the Practise Direction of 1966 which allows the Highest Court in the Country to reverse previous decisions. Without this decision the courts would still be bound by old and out dated rulings that can no longer be applied to modern society. As the amount of case law within the country continues to rise the significance of judicial precedent will increase as it will cover almost every legal situation. New precedents will only be brought in to apply new legislation and overturning previous decisions that are outdated due to this new legislation. However it appears that the system of judicial precedent has many flaws in such as the

Bibliography

• English Law -Smith & Keenan’s
• English Legal System- Elliot & Quinn
• Constitutional and Administrative Law-Barnett
• Precedent in English Law- Cross
• The Law and the constitution- Sir Ivor Jennings
• Introduction to Legal Method- Sweet & Maxwell
• The French Legal System- Dodomo & Farran