The Doctrine of Judicial precedent.

Binding or persuasive?

by

Dr Peter Jepson.

www.peterjepson.com

 

 

 

Hierarchy of the Courts (Civil & Criminal)

Click to see chart

[Something is missing in this chart. Can you spot it?] 

 

European Court of Justice

So far as EU Law is concerned, the ECJ is the supreme court of Europe.

Its decisions bind the House of Lords and ALL domestic Courts.

This power derives from the Treaty of Rome, which the UK signed up to via the European Communities Act 1992.

The case of Marleasing signifies that Domestic Courts have a duty to interpret national law in light of the purpose of the directives.

House of Lords

From 1898 to 1966 the H of L regarded itself as bound by past decisions.

London Street Tramways v London County Council (1898)

"Certainty of the law was more important than individual hardship"

Thus the Doctrine of stare decisis - stand by what has been decided.

In 1966 the H of L changed this practice and is no longer bound by its past decisions.

An example, of the implications of this change, can be found in the case of R v R (1991) (rape of a woman by her husband).

Also, the case of Pepper v Hart (1993) which allows the Courts to consult Hansard.

Retrospective change to the law possible by common law because Judges are said to be clarifying the law (not possible by Parliament).

Example: See Kleinwort Benson Ltd v Lincoln City Council (1998).

Though the House of Lords is usually careful not to overstep their constitutional role.

Example is the case of Southwark London Borough Council v Mills (1999).

Court of Appeal is bound by its past decisions.

In the case of Young v Bristol Aeroplane Co (1944) the C of A laid down grounds on which it would not be bound by its past decisions.

Binding and Persuasive Precedent

 

One example of binding precedent - James v Eastleigh Borough Council

Can you name another example?

What is persuasive precedent? 

Jacqueline Martin claims there are five examples of persuasive precedent ...

(1) Courts lower in the hierarchy.

(2) Privy Council decisions.

(3) Obiter dicta statements.

(4) A dissenting judgment.

(5) Decisions of courts in other countries.

In my article 'Gay Rights and the Human Rights Act 1998' I claim there is another. Can you name it?

What are the advantages and disadvantages of Judicial Precedent?

Advantages.. Certainty, Consistency and fairness, Precision, Time-saving.

Disadvantages.. Rigidity, Complexity, Illogical distinctions, Slowness of growth.

 

 Subject review...

Undertake the judicial precedent exercise...

Questions to ponder!

(1) 'What makes a case important?'

(2) 'To what extent is a judge bound to follow past decisions?'

(3) 'How do judges make the choice between the different lines of authority?'.