“Judicial Precedent is the most important source of law”.
Discuss.
Judicial precedent refers to the ‘decision of the court used as a source for future decision making.’ It applies the principles of stare decisis (let the decision stand), the doctrine of precedent where decisions made that as authorities for binding later cases. This is dependent however on the court hierarchal system which operates horizontally and horizontally. This means that courts of the same level are bound by their decisions and lower courts are obligated to follow the decisions of a higher court. Through analytical review, this essay will discuss judicial precedent as the most important source of law.
Decisions made by the European Court of Justice (ECJ) are always binding on United Kingdom courts. It is important to note that the ECJ does not operate a policy of stare decisis because it was ‘originally a court of a first and last resort, many of whose decisions could only be changed by amending the Treaties … it was imperative that the Court should have the power to … depart from its previous decisions.’ In Europe, each country has its territorial waters where they can fish freely however in *1991*, Spanish fishermen were caught fishing in UK territory. This founded the case of R v Secretary of State for Transport ex parte Factortame (1991) where the court ruled that according to the law, all countries are permitted to fish in their territory and a third of their neighbor’s waters. The ECJ is therefore in place as a last resort for the UK Courts in cases too complex, hence why decisions made by the ECJ are binding. This is because there is n alternative to the ECJ or a Court of Appeal for the ECJ and when decisions are made by this court, they often have been thoroughly considered and affect more than one country. England and Wales are therefore bound all laws made by this court because the ECJ stands as the highest authority.
The Supreme Court which took over the role of the judiciary from the House of Lords on October 1st 2009 is the highest court in the domestic court hierarchy. This means that any decisions made by this court are binding on the lower courts such as the Court of Appeal, High Court, Crown Court, County Court and the Magistrate Court. The Decisions made by the Supreme Court are not binding on the court itself. This means that they can deviate from the original precedent. This can sometimes be problematic because binding laws provide for administrative efficiency in ensuring the court’s decisions. Deviating from these may lead to undermining of the court. Cases of a similar nature should be treated alike to maintain fairness. However, when wrong decisions have been made, the inflexibility of precedent and repeated unfairness also raise issues hence.
The House of Lords did not always have the option to depart from their own decisions, they too were bound by their decisions. London Street Tramways Co Ltd v London County Council (1898) This led to the issuing of the Practice Statement (Judicial Precedent) (1966). ‘Their Lordships recognise … that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose to modify their present practice and, while treating former decisions … as normally binding, to depart from a previous decision when it appears right to do so. In this connection, they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.” In order to avoid the issues raised above, the Practice Statement should be ‘used sparingly,’ (Jones v Sec State (1972)).
Similar to the Supreme Court is the Court of Appeal. Decisions made by this court are binding to those below it in the hierarchy. It is, however, bound by the decisions of the ECJ, the Supreme Court and its own former decisions. However, in the case of Young v Bristol Aeroplane Co Ltd (1944), Lord Greene MR concluded that the court was entitled to decide which two conflicting decisions it would follow, it can refuse to follow its own previous decision and not stand with the decisions of the House of Lords and finally the court is ‘not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam’ The Court of Appeal can sometimes detract from binding precedent if the previous decision was not correct. In the domestic court hierarchy, all other courts are non-binding except the High Court which can sometimes create binding laws.
A proposition in a case is binding if it forms part of the ratio decidendi. Ratio decidendi forms the binding part of a case. It refers to ‘The ratio of a case is any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him’. Ratio decidendi is important in judicial precedent as it establishes the reasons behind which parts of a case are most important. In the case of Donoghue v Stevenson (1932) for example, ginger beer was not a dangerous product. The manufacturers, however, owed a duty of care to its customers. Cases containing the same material facts are bound by the ratio decidendi. Within a case, not everything said in a court of law becomes ratio decidendi. Some facts mentioned by judges, often a dissenting judge, that do not assist in reaching the final decision are referred to as obiter dicta. These can be used in other cases as seen in R v Gotts (1882) who followed R v Howe & Bannister (1987), as persuasive precedents but they are not binding.
Judicial precedent can be treated in four ways. Firstly, the court can apply precedent to a particular case, for example, the precedent of Donoghue v Stevenson (1932) was applied in the case of Grant v Australia Knitting Mills (1936) and similar cases stated above. Secondly, the court can also choose to overrule a decision by departing from a decision made by a lower court. An example of this is the case of R v G & R (2003) where the court overruled DPP v NI v Lynch (1975) in the issue of the test of recklessness applied in criminal damage. This is also one of the scenarios where the Practice Statement was used in the House of Lords. Overruling in this situation, therefore, means that the previous decision is no longer binding.
A third example of how courts can treat precedent is by distinguishing it. Here, the court analyses legal principles to understand them and then apply them to the law. The facts in the case here are regarded too different that way the previous case ceases to be binding. The Court of Appeal distinguished the case of Balfour v Balfour (1919) where a couple’s relationship did not work out and the defendant tried to enforce the agreement that the husband would send maintenance payments. The court held that this was a domestic agreement therefore the parties were not legally bound. In the case of Merrit v Merrit (1970), the court held that the agreement between the parties was binding and distinguished that the couple was separated and obliged by their written agreement.
Although judicial precedent is an important source of law, there are other sources of law exercised by the nation. Parliament creates statutes which form the majority of the laws in England and Wales. ‘Statutes can be applied to all or any combination of jurisdictions within the United Kingdom, whereas the common law jurisdictions are more limited.’ Statutory laws are applied nationally whereas, in order for judicial precedent to be implemented, one has to be in court for the different laws to be applied. This makes statutes the highest source of law contrary to judiciary precedent being the most important source of law. Material sources of law such as Westlaw, Lexis and law reports are also important in England and Wales. The UK has an uncodified constitution relating to the rule of precedent. These material sources are vital as they create a space where laws can be recorded due to the regular changes, making this a reliable source as it is updated daily and the ‘Current Awareness service, containing information on cases, legislation, and legal developments, is updated every 5 minutes from 8am until 5pm, Monday to Friday.’ Some sources, although not used in the court of law or as primary indications of the law, are important while studying the law. These include literary sources, textbooks, journals and articles.
Even though statutes are applied in our everyday lives, and are known and followed by most of the society, judicial precedent holds great importance in law as these have great effects on people’s lives and the results of applying these laws can have significant outcomes. Thus making judicial precedent an important source of law as statutes.