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


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


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
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