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.

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