Precedent owed to consumers by manufacturers, is still being

Precedent is one of the key sources
of English law. Precedent comes from previous judicial decisions made in cases
before. When deciding a case there are two main aspects a judge must consider.
The first one is to establish the facts of the case which is done through
evidence and secondly deciding how to apply the law to this situation. Through
this application of law, precedent can be made. It is then expected for future
cases to be treated the same as previous decisions made in similar cases in
order to follow the principle of ‘stare
decisis’ (translated from Latin means ‘to stand by decided matters’). The
doctrine of ‘stare decisis’ states
that the decision of higher courts are binding on judges of lower courts within
similar cases1. 

 

Once
a judge comes to a final decision on who has won the case, a judgement is made.
This includes two types of precedents called binding and persuasive precedents.
Within the judgement there is an explanation on the reasoning behind the judges
conclusion, which is also known as ‘ratio
decidendi’, latin for ‘reason for deciding”2.
This is the binding precedent. According to the status of the court, it is
essential for judges to follow the binding precedent when looking at cases that
have similar facts. For example, the ‘ratio
decideni’ in the case of Donogue v
Stevenson (1932)3
states there is a duty of care owed to consumers by manufacturers, is still
being used today4.
On the other hand, the judgement also entails ‘obiter dicta’ which being translated from Latin means ‘things said
by the way’. This makes the persuasive precedent. Courts are not bound to follow
persuasive precedent. However, if it is found reasonable to do so they can if
they want to as it may help influence future decisions. This is illustrated in
the case of R v R (1991)5,
whereby the House of Lords followed the same reasoning applied by Court of
Appeal (although they are a higher court in hierarchy) that a man could be
guilty of raping his wife.

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When
judges have to decide on a case that may have relevance to a previous decision,
they are able to consider these four things: Following, Distinguishing,
Overruling and Reversing. Following ensures that if the facts are similar then,
the precedent that was set by the earliest case is followed. Distinguishing allows
judges to depart from binding precedent if the facts of both cases are
significantly different. Overruling enables higher courts to override decisions
made by lower courts in previous cases if they disagree. Lastly, reversing
occurs when a case has been appealed to a higher court and they decide to
change it as they believe the decision was wrongly interpreted. This usually
entails overruling.

 

The
system of precedent follows the hierarchy of the courts in order to operate
efficiently. Therefore, all courts are bound by precedents of the courts which
are above them. In the English Legal System, the hierarchy of the courts are
(highest to lowest): the Court of Justice of the EU, the UK Supreme Court (ex
House of Lords Appellate Committee), the Court of Appeal, the High Court, then
the County Court, the Crown Court, and the Magistrates’ Courts. Therefore, a
precedent set by the Supreme Court is binding for the High Court. Although, the
higher courts are not obliged to follow the decisions of lower courts, they can
be taken into consideration and used in making the judgement in similar cases.
On the other hand there are some courts that can be bound to follow their own
precedents, for example the Civil Division of the Court of Appeal.

 

Whilst
the UK is still in the EU, any decisions made by the Court of Justice of the EU
are binding on all English Courts in accordance to the European Communities Act
1972 s.3 (1). Although the Court of Justice is not bound to follow their
previous decisions, they tend to do so. In contrast to this, the decisions made
by the European Court of Human Rights can be considered in English courts,
however they are not binding. The UK Supreme Court/House of Lords are the
highest for civil and criminal appeal cases. All precedent decided by them are
binding on the lower courts and up until 1966 they were bound by their own
decisions. Since the practice statement was changed in 1966, it is accepted for
the house to depart from previous decisions ‘when it appears right to do so’6.

 

Whereas,
in the Court of Appeal, as it is split into Civil and Criminal Divisions they
are not bound by each other but they are obliged to follow the decisions of the
UKSC. As stated before, the civil division are usually bound by their own
previous decisions unless: later decisions made by the UKSC/HL apply, there are
two or more conflicting precedents, precedent made ‘per incuriam’ (Latin for lack of care), the precedent conflicts
with earlier ULSC/HL decisions, International Law and Human Right Act 1998.

 

On
the other hand, the criminal division is not bound to their precedents when
they are wrong or unjust. For example, in the case of R v Simpson (2003)7,
Lord Woof states ‘The rules of precedent reflect
the practice of the courts… They are of considerable importance because of
their role in achieving the appropriate degree of certainty as to the law.’8

 

The
High Court is also bound by decisions made by House of Lord/UKSC and Court of
Appeal. Alongside this, any decisions made by single High Court judges are binding
on lower courts and not binding on other High Court judges as they may cause
conflict. On the other hand, precedent made by High Court divisional courts are
binding on single judges in the High Court but not binding on future divisional
courts.

 

Lastly,
all decisions made by the House of Lords/UKSC, Court of Appeal and High Court
are binding on the Crown, County and Magistrates’ Courts. As the Crown Court
and Magistrates’ Court cannot form binding decisions they are not obligated to
follow their own precedents. Although, as the County Court hears low value
civil cases and is a court of record, their own precedents bind them.

 

Precedent
is beneficial within our legal system as it promotes certainty and consistency.
It is the idea that each case is treated alike and judges are not able to make
their own bias decisions. This limits the amount of injustice that could occur
and encourages a fair legal system. Precedent also allows judges to apply
practical rules to their judgement, whereas, statutes only supply the theory of
law. This then enables judges to get a better understanding of how to deal with
different circumstances that may occur, as it provides more information and a
thorough explanation. Precedent encourages efficiency as it saves the time for
the judiciary, lawyers and clients, as the case does not need to be reargued.
It can also help litigants save money for court expenses as they can seek
advice from a barrister or solicitor on how their case is likely to be decided
in light of previous similar cases 9.
Lastly, it implements flexibility. In order for law to be fair, it needs to be
flexible as society is always changing. Precedent is a faster way to implement
this as opposed to parliament setting legislation.

 

Despite
the fact precedent encourages fairness in our legal system, there are some
disadvantages that may derive from it. Firstly, precedent can cause complexity
and volume. Due to the fact that there are a vast amount of cases all entailing
thousands of law reports it can be hard to identify appropriate principles.
Although there are some possible solutions to this problem such as, creating
single concise judgements, this could lead lawyers needing to do more research
to get a better understanding of the judgement. It can also be argued that
precedent is dependant on chance and money. As some cannot afford to push a
case through appeal or even have the motivation to do so, relevant changes may
not be made as precedent only changes when new cases are brought against it.
Furthermore, it may be found that judicial precedent is rigid. This occurs
through the dominance of precedent; even if a judge did not agree with a
binding decision it would still need to be applied until a court with the
appropriate status overruled it. Lastly, precedent may cause illogical
distinctions. As judges are able to depart from binding precedent (if
significant facts differ), it is possible for some judges to pinpoint small
differences in order to distinguish a precedent. If this continually occurs, it
can lead to a vast amount of cases establishing different precedents in similar
matters leading to more complexity.

 

On the
whole, precedent is an essential part of law as it enables practicality in the
judgement of cases. As the theory of law can only take the judiciary so far,
precedent can help them make better decisions through more detailed
explanations. The way the system of precedent functions within the hierarchy of
the courts prevents injustices and incorrect interpretation of law. Precedent
encourages certainty and consistency as the same decision is expected to be
used throughout similar future cases. However, it can be argued that this same
system leads to complexity, dependence on chance, rigidness, and illogical
distinctions. Despite the disadvantages, it is clear to see that the tradition
of precedent has been helpful in the English Legal System when deciding a case.
We can also see how dominant and useful early precedents are even in our lives
today, for example Hartley v Ponsonby
(1877)10 or
Bolton v Stone (1951)11. It
is essential for the judiciary to continue with this system as it enables
flexibility in law and has created a strong foundation for the developing legal
system.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Bibliography

Cases

Bolton v Stone (1951) AC 850

Donoghue v. Stevenson (1932) SC (HL) 31

Hartley v Ponsonby 1857 7 EB
872

Montgomery
v Lanarkshire Health Board (General Medical Council intervening) –
2016 1 LRC 350

R v R
(1992) 1 A.C. 599, HL

R v Simpson (2003)
EWCA Crim 1116 (2003) All ER (D) 92 (Apr)

 

Other
Resources

Elliot,
C & Quinn, F, English Legal System
(7th edn, Pearson, 2016)

Fiyaz ‘Case Law’ (Case Law, Monday 15 August 2011)

House
of Lords ‘Practice Statement’ (Judicial Precedent,
1966)

Paul
M. Perell ‘The doctrine of stare decisis’ (Legal
Research Update 11 1987) http://legalresearch.org/writing-analysis/stare-decisis-techniques/

Slapper, G and Kelly,D, The English Legal System (15th edn, Routledge 2014) 154

 

 

In
January, The Central Criminal Court of England and Wales (The Old Bailey) heard
the case of R v Gboho Dami on sexual
assault. Through the Courts Act 1971, a unified Crown Court was formed, now
there are 71 Crown Court Centres. The Crown Court deals with serious criminal
cases. Crown courts also hear appeals against convictions from the magistrates’
court. The Old Bailey is the most famous Crown Court Centre and deals with the
most high profile cases of crime. Legal documents at the Old Bailey date back
to late 17th century. Before entering, we were instructed on how to
act in the courtroom (no talking or carrying any technology and were obliged to
stay for an hour). We were seated in the public gallery. The case consisted of
one judge who sat at the front of the courtroom, on the bench. It is his role
to ensure fair trial and decide the sentence. To his right, there was a witness
stand. Just in front of the Judge was the Court Clerk, her role consists of
providing relevant legal documents and ensuring everything is how it should be
in the court. To the left of the Judge was the jury box that included 12
people, they listen to the evidence and decide whether the defendant is guilty
or not. In front of the Court Clerk sat the two barristers who advocate for
their client. Lastly, behind them in the defendants box, sat the defendant with
his translator.  This case was still at
the stage of plea hearing; therefore it only consisted of the victim giving her
statement. The victim gave her statement through a video. The main accusations
she made were situations that occurred when she lived with the defendant who
allegedly sexually assaulted her.

However, my experience at the Royal Courts of Justice
(RCJ) in December was more relaxed as we attended an appeal case. RCJ homes
both the High Court and Court of Appeal. We sat in court 4 which had 3 judges
on the bench, one being the Lord Chief Justice of England and Wales. They were
seated on the highest point of court and faced everyone in comparison to the
Old Bailey where the public gallery were not seated in his view. In front of
them sat the clerk again. The defendant’s barrister sat to the left on the
judge and the victim’s barrister sat to the right. Behind them was the public
gallery. In this case, the defendant was in prison at the time of his case
therefore he was videoed live to hear the proceeding of his case. Whereas, in
the Old Bailey the defendant attended and the claimant was videoed previously.
The defendant was charged of murder caused by reckless driving and alcohol was
found in his system. Due to the progression of the defendant in prison
(studying), his relation to the deceased and his reputation proven to be
excellent, the judges decided to shorten his sentence from 27 months to 14.

 

1 Paul M. Perell ‘The doctrine of stare decisis’ (Legal
Research Update 111987)

2 Catherine Elliot & Frances Quinn, English Legal System (7th edn, Pearson, 2016) 14

3  Donoghue v. Stevenson (1932) SC (HL) 31

4 Montgomery v
Lanarkshire Health Board (General Medical Council intervening) – 2016 1 LRC 350

5  R v R (1992) 1 A.C. 599, HL

6 House of Lords ‘Practice Statement’ (Judicial Precedent, 1966)

7 R v Simpson (2003)
EWCA Crim 1116 (2003) All ER (D) 92 (Apr)

8 Fiyaz ‘Case Law’
(Case Law, Monday 15 August 2011)

9  Gary Slapper
and David Kelly, The English Legal System
(15th edn, Routledge 2014) 154

10 Hartley v Ponsonby 1857 7 EB
872

11 Bolton v Stone
(1951) AC 850