English Legal System - Sources of Law (Continued)

The Operation of Stare Decisis by the Courts

Although it has been stated that the law should remain the same as that established by the precedent, this does not reflect reality, and if it binding precedents were rigidly adhered to would create a rigidity and inflexibility.

Approaches to Judicial Precedent

When a case arises before a court and there is a relevant precedent the judge have the following options

Follow – if the facts of the case are sufficiently similar, the earlier case is followed by applying the law in the same way

Distinguish – if the facts of the case are significantly different from the previous cases the judge may distinguish the cases and therefore not follow the earlier

Overrule – if the decision in an earlier case has been made by a lower court and the judge disagrees with the lower court’s statement of law, he may overrule it. This has the effect that the outcome of the previous decision stands but will not be followed

Reverse – a case on appeal from a lower court may be reversed if the appellate court feels that the lower court has interpreted the law wrongly. Reversal of a decision overrules the lower court’s statement of law.

Are the Appellate Courts Bound by its Own Previous Decisions?

The House of Lords

The decisions of the House of Lords bind all of the lower courts, but does it bind itself? It was thought that the House of Lords did bind its self; however the practice direction issued by Lord Chancellor, Lord Gardiner, in 1966, changed this position. Practice Direction (House of Lords: Judicial Precedent) [1966] 1 WLR 1234, stated that the House of Lords did not have to consider itself bound by their previous decisions.

It did also emphasise that the circumstances in which this would happen would be exceptional, and that it would normally continue to follow its own previous decisions.

Examples of where the House of Lords has been prepared to overturn its own previous decisions are R v R (Rape: Marital Exemption) [1991] 4 All ER 481, concerning rape in marriage. Arthur JS Hall & Co v Simmons [2000] 3 WLR 543, regarding immunity of barristers from claims of negligence.

The Court of Appeal

The Court of Appeal is bound by the House of Lords and binds itself.

The case of Young v Bristol Aeroplane Co Ltd [944] KB 718 established limited exceptions to the rule:

When there are two conflicting decisions of the Court of Appeal it may chose which one to follow.

Where the previous decision of the Court of Appeal, even if not expressly overruled, conflicts with a House of Lords decision

Where the decision has been made ‘per incuriam’

The second ground to overrule could also now apply to cases which conflict with European legislation.

Should the scope of the Court of Appeal be not to be bound be expanded?

Lord Denning argued that the ambit for the Court of Appeal should not to be bound by its own decisions should be expanded even further in Davis v Johnson [1978] 2 WLR 182.

When the case reached the House of Lords ([1979] AC 264) it was keen to reject Lord Denning’s arguments Lord Diplock described Lord Denning MR as ‘a one man crusade with the object of freeing the Court of Appeal from the shackles….of stare decisis’ and further went on to reiterate the position stating ‘that the rule laid down in the Bristol Aeroplane case…. as to stare decisis is still binding on the Court of Appeal,’

The Development of Other Exceptions?

More recent case law, according to academics Prime and Scanlan has suggested that a new exception may be emerging by declining to follow a case if it was ‘manifestly wrong’. This is an area of uncertainty and it would be premature to suggest that such an exception had been created.

Court of Appeal – Criminal Division

The above discussion has focused on the Court of Appeal Civil Division. The Criminal Division of the Court of Appeal is also bound by its own decisions, but that the exceptions set out in Young v Davis would also apply to it. R V Spencer [985] QB 771.

There is an additional exception the ‘liberty’ rule that focuses on the resulting incarceration that would occur if a precedent was followed. If a defendant were to be held in custody as result of following a previous Court of Appeal precedent that has been wrongly decided, then the principle of stare decisis can be departed from.

This is an exceptional circumstance though and used on a very restrictive basis.

English Legal System - Sources of Law (Part 3)

Privy Council

Established by the Judicial Committee Act 1833

Acts as the final appeal court for 30 Commonwealth countries

Has also limited domestic jurisdiction

Its decisions do not bind the English courts, but taken into consideration the seniority of the judges sitting in the Privy Council, there is a strong persuasive authority 

Court of Appeal

Divided into two Divisions – Civil Division and Criminal Division

Both the Civil Division and the Criminal Divisions are bound by House of Lords, but they don’t bind each other

Civil Division is bound by its own previous decisions with four (4) exceptions:

Decision made in ignorance of the relevant law;

There are two (2) previous conflicting decisions;

There is a later conflicting House of Lords’ decision

A proposition of law was considered to exist by an previous court and was not submitted to argument or consideration by that court

Exceptions 1.-3. were laid down in Young Bristol Aeroplane Co Ltd [1946] AC 163

Exception 4. added by R v Kadhim v Brent London Borough Housing Benefit Review Board [2001]

The criminal division has a more ‘relaxed’ approach to its previous decisions

The High Court

The High Court is divided into the ordinary High Court and the Divisional Courts

These are bound by the Court of Appeal and the House of Lords

The Queen’s Bench Division (dealing with criminal appeals and judicial review) and the Chancery Division & Family Division (both dealing with civil appeals) are the Divisional Courts

The Chancery Division and the Family Division are bound by their previous decisions

Queen’s Bench Division is flexible when it comes to the matter if it is bound its previous decisions

The ordinary High Court is bound by its own previous decisions

The High Court is capable of producing precedents for the courts below it in the hierarchy taken into account that these will be lower in status to those precedents produced by the Court of Appeal and the House of Lords

The Crown Court
 
The Crown Court is the main criminal court, created by the Courts Act 1971 (substantial parts of which were re-enacted in the Supreme Court Act 1981)

Theoretically it is a single court, but sittings may be conducted at any place in England and Wales, presently there being over 90 permanent centres

The term ‘Central Criminal Court’ has been retained for the Crown Court sitting in the City of London at the Old Bailey

The Crown Court centres are divided into three (3) tier categories

‘First-tier’ centres deal with complete range of Crown Court business, visited by High Court judges, Circuit judges and recorders, and by High Court judges for High Court civil work

‘Second-tier’ centres are differ from the ‘first-tier’ only in that there is no civil business

‘Third-tier’ centres are only visited by the Circuit judges and recorders

The centres are divided into six (6) circuits – Midlands and Oxford, North Eastern, Northern, South Eastern, Wales and Chester and Western

Seventh (7.) circuit was created in May 2001, but this is of its nature rather different from the other six, since it does not represent a geographical region of England and Wales as the others do

Crown Court has exclusive jurisdiction in respect to criminal trials on indictment

A criminal trial at the Crown Court is generally by a jury, except when the court is hearing an appeal by a way of rehearing from the magistrate’s

All the courts above the Crown Court bind it

The decisions of this court do not establish binding precedents and therefore it is not bound by its own decisions

If there is a High Court judge sitting at the Crown Court, the judgements must be considered as a persuasive precedent meaning that they must be given serious consideration in successive cases, but there is no obligation to follow them

If the judge is a circuit judge or a district judge, there won’t be precedent formed at all

Magistrates’ and County Courts

The Magistrates Courts and the County Courts are called the ‘inferior courts’

They are bound by the High Court, Court of Appeal and the House of Lords

They do not form binding precedents

They are not bound by their own decisions

The decisions of the inferior courts very rarely find their way into a law report

Advantages and Disadvantages of Case Law/Common Law

Advantages

It has been argued that an advantage of case law is that it promotes certainty as cases are decided according to the judicial precedent.

Case law is a response to real situation, as opposed to statutes which are more based on theory and logic

It has been also stated as an advantage of case law that it promotes the development of legal and that it is flexible

Disadvantages
 
The disadvantages of case law are that it the volume of decided cases makes it very complex

That the judges are expected to follow the binding precedent even with an inappropriate result

It also may encourage illogical distinctions, resulting therefore in unpredictability

As case law is based on the decisions of judges, it has been argued that the experience and vision of legislator can not be matched with them

English Legal System - Sources of Law (Part 2)

Sources of Law

English law comes into existence from eight (8) different sources, which vary in importance but may be categorised as:

Common Law
Acts of Parliament
Statutory Interpretation
Delegated Legislation
European Law
Custom
Equity
Treaties

Common Law

Common law, also known as case law, has long and interesting history. Rivlin regards the common law as the foundations for his ‘invisible palace’ that has been “built up, added to and altered to [improve] the quality of our laws”.

History of Common/ Case Law

William the Conqueror gained the English throne in 1066 he established a central government and started to standardize the law, which was based on different systems of law in different parts of the country – Wessex law in the south and west, Mercian law in the midlands and Dane law in the north.

King’s representatives were sent to adjudicate in accordance with the local law in these areas and on their return back to Westminster they were able to discuss and compare the different legal customs and form from them a consistent body of rules.

By 1250 the whole of the country was ruled by a uniform ‘common law’

During this process of forming a body of legal rules the important legal principle of stare rationibus decidendis – ‘let the decision stand’ was originated. The law became more predictable as the principle of stare decisis meant that when a question of law became to be decided, the decision would form a rule to be followed in all similar cases.

The principle of stare decisis was the basis for the development of hierarchy of precedent and the hierarchy of the current court structure, as this principle states that a judge must follow the decisions of the higher courts.

The doctrine of binding precedent is a fundamental part of the law.

Judicial Precedent/Stare decisis

The doctrine of judicial precedent ‘creates the expectation that save for the intervention of the legislature, the law will remain as it is state to be in the precedent’

The doctrine of judicial precedent also known as stare decisis (‘let decided things stand’), or binding precedent, is of fundamental importance within the English legal system. Established through the centuries, it states that the English courts are obliged to follow previous decisions within certain limits.

The doctrine of precedent declares that cases must be decided the same way when the material facts are the same. Not every case forms a precedent, and it is intrinsically linked to the court hierarchy.

In order to establish the precedent of the case, it is necessary to analyse what is said by the judges of case and how the conclusion are reached. The statements made by the judges can be divided into two to types:

Ratio Decidendi

The rule of law upon which the decision is based on is called the ratio decidendi (‘the reason for decision’)

The ratio decidendi is not ‘announced’ in the judgement but must be derived from the case

Obita Dicta

All the other parts of the judgement which do not form part of the ratio decidendi are called ‘obiter dicta’ – ‘things said by the way’, which often are discussions of hypothetical situations

Distinguishing between the ratio decidendi and the Obita Dicta

It is often difficult to distinguish between the two types of legal statement, and can be further complicated when there is more than one judge giving a judgement.

The application of Judicial Precedent within the Court Hierarchy

The European Court of Justice

This court deals with interpretation of the EU treaties, validity of acts of Community institutions and interpretation of the statutes of Council bodies

Its decisions are binding on all English courts by reason of the European Communities Act 1972

It does not seem to be bound by its own decisions

European Court of Human Rights

Britain is a party to the European Convention on Human Rights, enacted by the Human Rights Act 1998 which came into force on October 2nd , 2000

Courts in the United Kingdom must take into account the Strasbourg jurisprudence to interpret legislation in accordance with the Convention

Any person who claims to be aggrieved by a violation of the provisions of this convention, being unsatisfied with the determinations of the domestic courts may complain to the European Court of Human Rights

If the court concludes affirmative decision, the British Government must under international law amend the its law or practice accordingly

House of Lords

The head of the hierarchy of English Courts

Deals only with appeals (mainly from the Court of Appeal or by ‘leapfrog’ from the High Court) – both civil and criminal

Hears around 100 cases a year

Binds all other English courts but not itself

Used to bind itself:

London Tramways v London County Council [1898] AC 375 at 380:

“Of course I do not deny that cases of individual hardship may arise, and there may be a current of opinion in the profession that such and such a judgement was erroneous; but what is that occasional interference with what is perhaps abstract justice, as compared with the inconvenience – the disastrous inconvenience – of having each question subject to being reargued and the dealings of mankind rendered doubtful by reason of different decisions, so that in truth and in fact there would be no real final court of appeal. My lords, ‘interest rei publicae’ is that there should be ‘finis litium’ sometime and there can be no ‘finis litium’ if it were possible to suggest in each case that it might be regarded because it is ‘not an ordinary case’ whatever that may mean.” - Lord Halsbury

This was changed on July 26th, 1966:

Practice Statement (Judicial Precedent) [1966] 1 WLR 1234

“Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individual can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.

Their Lordships nevertheless 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 therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a 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.

This announcement is not intended to affect the use of precedent elsewhere than in this House.”

The above was issued to the press with an explanatory note:

“Since the House of Lords decided the English case of London Street Tramways v London County Council in 1898, the House have considered themselves bound to follow their own decisions, except where a decision has been given per incuriam in disregard of a statutory provision or another decision binding on them. The statement made is one of great importance, although it should not be supposed that there will frequently be cases in which the House thinks it right not to follow their own precedent. An example of a case in which the House might think it right to depart from a precedent is where they consider that the earlier decision was influenced by the existence of conditions which no longer prevail, and that in modern conditions the law ought to be different.

One consequence of this change is of major importance. The relaxation of the rule of judicial precedent will enable the House of Lords to pay greater attention to judicial decisions reached in the superior courts of the Commonwealth, where they differ from earlier decisions of the House of Lords. That could be of great help in the development of our own law. The superior courts of many other countries are not rigidly bound by their own decisions and the change in the practice of the House of Lords will bring us more into line with them.”

Very rarely it overrules its earlier decisions

English Legal System - Sources of Law (Part 1)

The Court Structure in the UK and the Common Law

Classification of Law

Law may be classified in different ways depending on the context, such as International Law (Private International law and Public International law), concerning the relationships between sovereign States and Municipal Law, concerning the laws of the State

English law can be divided into Public Law and Private Law

Public Law concerns the state and the individuals in relation to the state and includes: Constitutional and Administrative Law, European Community Law and Criminal Law

Private Law concerns the rights and duties between individuals and includes:

The Law of Contract – agreements
The Law of Tort – civil wrongs
Family Law – personal relationships
The Law of Succession – inheritance
The Law of Property – ownership and possession of goods
The Law of Trusts – holding property for the benefit of another

The most common division of English Law is between Civil Law and Criminal Law

In order to understand the structure of English legal system it is important to understand the division between civil and criminal law as the terminology, procedures and outcome is different

Civil Law concerns the relationships between individuals including companies, government departments, etc. and the civil wrongs include breach of contract, tort and breach of trust.

Criminal Law concerns acts which are considered as wrongful acts against the state and they may be divided into indictable, summary and offences triable either way

The Structure of the Court System in the UK

When looking at the Courts as a source of law, two (2) distinctions must be made:

1. Distinction between trial courts and appellate courts:

Trial courts hear cases as ‘first instance’ to make a ruling on the issues of fact and law

Appellate courts reconsider the application of legal principles to case which has been already heard by a lower court

Trial and appellate functions are often combined within one court, so it is not possible to state that a court is solely a trial or appellate court

2. Distinction between criminal courts and civil courts:

term civil law includes the areas of law governing relationships between legal persons such as tort, contract, employment

criminal law includes wrongs that are important for the society to outlaw as crimes and to impose special penalties on the wrongdoer (e.g. imprisonment or a fine) – crimes are divided into: indictable, summary and offences triable either way

there is fairly clear distinction between courts having civil and those having criminal jurisdiction

The Hierarchy of the Courts

In order to fully understand the common law and the concept of judicial precedent (discussed below) it is essential first to be familiar with the court structure within the UK.

Hierarchy of the main civil courts
1. European Court of Justice (on European Law)
2. House of Lords
3. Court of Appeal (Civil Division)
4. High Court
5. County Court

Hierarchy of the criminal courts
1. House of Lords
2. Court of Appeal (Criminal division)
3. Queen’s Bench Division
4. Crown Court
5. Magistrates’ Court

English Legal System - Introduction to the English Legal System (Part 2)

Supremacy of Parliament

The supremacy of Parliament is the second fundamental principle of the British constitution, also called the parliamentary sovereignty. This states that the Parliament is the highest source of English law.

Dicey used ‘sovereignty’ to describe the concept of the ‘power of law-making unrestricted by any legal limit’ and described the principle as meaning:

[N]either more nor less than this, namely, that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatsoever, and further, that no person or body is recognised by the law of England as having the right to override or set aside the legislation of Parliament.

Therefore the law must be applied by the courts as long as it has been passed in accordance with the parliamentary procedure rules. Parliamentary supremacy is an unusual approach in democratic countries. The reasoning behind the supremacy of the Parliament is that it is democratically elected.

The Effect of Membership of the European Union on Parliamentary Sovereignty

• The Human Rights Act 1998 (came into force in October 2000) incorporates the European Convention on Human Rights into the domestic law but does not give the convention superiority over English law

• The membership of Britain in the European Union affects the Parliamentary supremacy by giving EU law precedence in the specific subject it can make law

• In the subject areas are not covered by the European Union, the Parliament remains supreme

Rule of Law

The third basic principle of the British constitution is the Rule of Law. This principle is developed from the writings of 19th century writer Dicey who stated that there are three (3) elements to this principle;

1. Nobody should be punished by the state if they had not broken the law

2. One law should govern everyone – citizens and state officials

3. Rights of individuals should not be secured in a written constitution but by the decisions of judges in ordinary law

Today the importance of the concept of rule of law is combination of these three (3) elements forming the principle that the state may use its powers only according to agreed rules.

Constitutional Reform in the UK

The UK constitution evolved through the centuries into the form that is currently studied today, however Professor King has stated:

Although few people seem to have noticed the fact, the truth is that the United Kingdom’s constitution changed more between 1970 and 2000, and especially between 1997 and 2000, than during any comparable period since at least the middle of 18th Century.

Professor King identified 12 areas of change that occurred during this period. Professor Bogdanor has expanded this list to 15. Significant changes include the UKs membership of the EU, devolution and the establishment of a Supreme Court and changes in the role of Lord Chancellor. The impact of these events is still to be seen in full, and more changes are still likely to happen.

English Legal System - Introduction to the English Legal System (Part 1)

What is a constitution?

A constitution has been defined as a series of legal and non legal rules that define how a country is governed. It identifies:

The institutions of government

The nature and distribution of powers within those institutions

The forms and procedure through which such powers should be exercised

The relationship between the institutions of government and the individual citizen (This is often expressed in a ‘Bill of Rights’)

The UK Constitution

Rivlin poses a wonderful image of an invisible palace that has been built up and added to over centuries and at the centre of the palace is the throne room which is the British Constitution.

The problem is knowing what makes up the ‘invisible palace and throne room’ , unlike other countries where it is possible to see the constitution of that country in written format, the UK does not have that ability, there is no one document that can be called the UK constitution.

The academic Neil Parpworth is keen to highlight that although there is no one document that contains the British Constitution it would be erroneous” to say that the rules of the British Constitution are unwritten as there are several written sources that can be referred to find the principles of the British Constitution, for example, the Magna Carta and Acts of Parliament.

Principles of the British Constitution

The three (3) basic principles underlying the British constitution are; the separation of powers, the supremacy of Parliament and the rule of law

Separation of Powers

This is a fundamental principle of the British constitution. The separation of powers principle was developed by French philosopher Montesquieu in the 18th century in L’Esprit des Lois (The Spirit of the Laws), although in the preface of the book he appealed too the readers to ‘approve or condemn the book as a whole and not just a few sentences.’

Sadly his eminence in the place of the study of constitutional law has been as a result of just a small section of his writings.

Montesquieu viewed the separation of the powers, in a chapter entitled ‘On the Constitution of England’ thus:

When legislative power is united with executive power in a single person or in a single body of the magistracy, there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will execute them tyrannically.

Nor is there liberty if the power of judging is not separate form legislative power and from executive power. If it were joined to legislative power, the power over the life and liberty of the citizen would be arbitrary, for the judge would be the legislator. If it were joined to executive power, the judge could have the force of an oppressor.

All would be lost if the same mane of the same body of principal men, either of nobles, or of the people, exercised these three powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals.

According to Montesquieu’s principle all state powers may be divided into three (3) types – executive, legislative and judicial

Executive – Government and its servants (police, civil servants, etc.)

Legislative – Parliament

Judicial – the Judges

The basis of this principle was the theory that these of power should not be concentrated in the hands of one group or individual but should each be exercised by different body


See also textbooks.