Sources of English law

Case Law
Section 3
Judicial Precedent
• Stare decisis(let the decision stand):Consistent body of rules
• Whenever a new problem of law came to be decided, the decision
formed a rule to be followed, in all similar cases, making the law more
predictable
• By 1250 a common law had been formed, that ruled the whole
country and would be applied consistently and predict what the
courts might decide in a particular case
• The English common law system was exported around the world
during the colonial period , e.g US and Commonwealth countries
Continued
• Case law comes from the decisions made by the judges in the cases before them. In
deciding a case, there are two basic facts: establishing the facts and what happened and
how the law applied to those facts. It is the second task that can make case law.
• The idea is that once a decisions has been made on how the law applies to a particular
set of facts, similar facts in later cases should be treated in the same way, following the
principle of stare decisis
• This is more fair than allowing each judge to interpret the law differently and provides
predictability
• The judge listens to the evidence and the legal argument and then prepares a written
decision as to which party wins, based on what they believe the facts were and how the
law applies to them, this decision is the judgment
• The judgment contains the comment and an explanation of the legal principles on which
the judge has made a decision
• The explanation of the legal principles on which the decision is made is called ratio
decidendi
Continued
• All the parts of the judgment which do not form part of the ratio decidendi
of the case are called obiter dicta – which is Latin for ‘things said by the
way’. These are often discussions of hypothetical situations: for example,
the judge might say ‘Jones did this, but if she had done that, my decision
would have been . . .’ None of the obiter dicta forms part of the case law,
though judges in later cases may be influenced by it, and it is said to be a
persuasive precedent.
• In deciding a case, a judge must follow any decision that has been made by
a higher court in a case with similar facts. The rules concerning which
courts are bound by which are known as the rules of judicial precedent, or
stare decisis . As well as being bound by the decisions of courts above
them, some courts must also follow their own previous decisions; they are
said to be bound by themselves.
Continued
When faced with a case on which there appears to be a relevant earlier decision, the judges can do
any of the following:
Follow: If the facts are sufficiently similar, the precedent set by the earlier case is followed, and the
law applied in the same way to produce a decision.
Distinguish: Where the facts of the case before the judge are significantly different from those of
the earlier one, then the judge distinguishes the two cases and need not follow the earlier one.
Overrule: Where the earlier decision was made in a lower court, the judges can overrule that
earlier decision if they disagree with the lower court’s statement of the law. The outcome of the
earlier decision remains the same, but will not be followed. The power to overrule cases is only
used sparingly because it weakens the authority and respect of the lower courts.
Reverse: If the decision of a lower court is appealed to a higher one, the higher court may change it
if they feel the lower court has wrongly interpreted the law. Clearly when a decision is reversed, the
higher court is usually also overruling the lower court’s statement of the law. In practice, the
process is rather more complicated than this, since decisions are not always made on the basis of
only one previous case; there are usually several different cases offered in support of each side’s
view of the question.
The hierarchy of courts
• Court of Justice of the European Union: Decisions of the Court of Justice of the European
Union on European law are binding on all English courts (European Communities Act
1972, s. 3(1)). Although the European Court tends to follow its own previous decisions, it
is not bound to do so.
• The Supreme Court: Apart from cases concerning European law, the Supreme Court is
the highest appeal court on civil and criminal matters, and all other English courts are
bound by it. The Supreme Court replaced the long-established House of Lords in 2009
and the rules of precedent are expected to be exactly the same for the Supreme Court as
they were for the House of Lords before it. The House of Lords was traditionally bound
by its own decisions, but in 1966 the Lord Chancellor issued a Practice Statement saying
that the House of Lords was no longer bound by its previous decisions. In practice, the
House of Lords only rarely overruled one of its earlier decisions, and this reluctance is
illustrated by the case of R v Kansal (No. 2) (2001). In that case the House of Lords held
that it had probably got the law wrong in its earlier decision of R v Lambert (2001). The
latter case had ruled that the Human Rights Act 1998 would not have retrospective effect
in relation to appeals heard by the House of Lords after the Act came into force, but
which had been decided by the lower courts before the Act came into force.
Continued
• The Privy Council: The Privy Council was established by the Judicial
Committee Act 1833. It is the final appeal court for outlying British or
formerly British territories, such as Jamaica, Gibraltar and the Isle of
Man. The judges of the Supreme Court sit in the Privy Council. It is
based in the new buildings of the Supreme Court but remains a
separate entity. In 2014, it heard 43 appeals. Under the traditional
rules of precedent, the decisions of the Privy Council do not bind
English courts, but have strong persuasive authority because of the
seniority of the judges who sit in the Privy Council (de Lasala v de
Lasala (1980)). This well-established rule of precedent has been
thrown into doubt by the recent Court of Appeal judgment of R v
James and Karimi (2006).
Continued
• Court of Appeal: This is split into Civil and Criminal Divisions; they do not bind
each other. Both are bound by decisions of the old House of Lords, and the new
Supreme Court. In the Criminal Division, the results of cases heard may decide
whether or not an individual goes to prison, so the Criminal Division takes a more
flexible approach to its previous decisions and does not follow them where doing
so could cause injustice. In R v Simpson (2003) the Court of Appeal stated that it
had a degree of discretion to decide whether one of its earlier decisions should
be treated as binding on itself when there were grounds for saying the earlier
decision was wrong. This dicta was narrowly interpreted in R v Magro (2010),
where the Court of Appeal held that its earlier decision in R v Clarke (2009) was
wrong, but it was still not able to overrule it because the earlier decision had
benefited from full argument of the relevant legislation and case law and the
judges closely analyzed the point. Thus R v Simpson was interpreted as simply
referring to the per incuriam rule that an earlier case would not be binding if it
was made in ignorance of a relevant law (at least when the earlier case benefits
the defendant).
Continued
• High Court : This court is divided between the Divisional Courts and
the ordinary High Court. All are bound by the Court of Appeal, the old
House of Lords and the new Supreme Court. The Divisional Courts are
the Queen’s Bench Division, which deals with criminal appeals and
judicial review, the Chancery Division and the Family Division, which
both deal with civil appeals. The two civil Divisional Courts are bound
by their previous decisions, but the Divisional Court of the Queen’s
Bench is more flexible about this, for the same reason as the Criminal
Division of the Court of Appeal. The Divisional Courts bind the
ordinary High Court.
Continued
• Crown Court : The Crown Court is bound by all the courts above it. Its
decisions do not form binding precedents, though when High Court judges
sit in the Crown Court, their judgments form persuasive precedents, which
must be given serious consideration in successive cases, though it is not
obligatory to follow them. When a circuit or district judge is sitting no
precedents are formed. Since the Crown Court cannot form binding
precedents, it is obviously not bound by its own decisions.
• Magistrates’ courts: The magistrates’ courts hear mainly summary criminal
cases. They are bound by the High Court, the Court of Appeal and the
Supreme Court. Their own decisions are not reported, and cannot produce
binding precedents, or even persuasive ones. Like the Crown Court, they
are therefore not bound by their own decisions.
Continued
• County Court : The County Court hears low-value civil cases. It is a court of record
so it can set precedents for itself, but not for higher courts. It is bound by the
High Court, the Court of Appeal and the Supreme Court.
• The European Court of Human Rights (ECtHR): is an international court based in
Strasbourg. It hears cases alleging that there has been a breach of the European
Convention on Human Rights. This court does not fit neatly within the hierarchy
of the courts. Under s. 2 of the Human Rights Act 1998, an English court ‘must
take account of’ the cases decided by the ECtHR. This would suggest that the
decisions of the ECtHR are not completely binding on UK courts. Usually the
jurisprudence of the ECtHR, having been taken into account, would be followed,
but the domestic courts are not bound to do so. There is considerable debate
about how s. 2 should be interpreted which is linked to a broader debate about
how much influence the ECtHR should have in the United Kingdom. Under what
has become known as the ‘mirror principle’, it has been suggested that the
domestic courts should seek to mirror the interpretation of Convention rights to
the interpretation given by the ECtHR.
How Judges Decide Cases
• By distinguishing the awkward precedent on its facts – arguing that the facts of the case
under consideration are different in some important way from those of the previous
case, and therefore the rule laid down does not apply to them. Since the facts are
unlikely to be identical, this is the simplest way to avoid an awkward precedent, and the
courts have made some extremely narrow distinctions in this way.
• By distinguishing the point of law – arguing that the legal question answered by the
precedent is not the same as that asked in the present case.
• By stating that the precedent has been superseded by more recent decisions, and is
therefore outdated.
• By giving the precedent a very narrow ratio decidendi. The only part of a decision that
forms binding precedent is the ratio, the legal principle on which the decision is based.
Since judges never state ‘this is the ratio decidendi’, it is possible to argue at some length
about which bits of the judgment actually form the ratio and therefore bind courts in
later cases. Judges wishing to avoid an awkward precedent may reason that those parts
of the judgment which seem to apply to their case are not part of the ratio, and are only
obiter dicta, which they are not obliged to follow.
Continued
• By arguing that the precedent has no clear ratio decidendi. There are usually
three judges sitting in Court of Appeal cases, and five in the Supreme Court.
Where each judge in the former case has given a different reason for coming to
the same decision, or where, for example, two judges of the Supreme Court take
one view, two more another, and the fifth agrees with none of them, it can be
argued that there is no one clear ratio decidendi for the decision.
• By claiming that the precedent is inconsistent with a later decision of a higher
court, and has been overruled by implication.
• By stating that the previous decision was made per incuriam, meaning that the
court failed to consider some relevant statute or precedent. This method is used
only rarely, since it clearly undermines the status of the court below.
• By arguing that the precedent is outdated, and no longer in step with modern
thinking
Dworkin: A seamless web of principles
Judges have no real discretion in making case law, law as a seamless web of principles
which supply the right answer, and only one, to every possible problem.
Although legal rules may run out, principles do not, and therefore judges need not use
their own discretion.
Dworkin’s approach has been heavily criticized as being unrealistic: opponents believe that
judges do not consider principles of justice but take a much more pragmatic approach,
looking at the facts of the case, not the principles.
In his book Law’s Empire (1986), Professor Dworkin claims that judges first look at previous
cases, and from those deduce which principles could be said to apply to the case before
them. Then they consult their own sense of justice as to which apply, and also consider
what the community’s view of justice dictates. Where the judge’s view and that of the
community coincide, there is no problem, but if they conflict, the judges then ask
themselves whether or not it would be fair to impose their own sense of justice over that
of the community. Dworkin calls this the interpretive approach and, although it may
appear to involve a series of choices, he considers that the legal principles underlying the
decisions mean that in the end only one result could possibly surface from any one case.
Critical theorists: Precedent as legitimation
• Critical legal theorists, such as David Kairys (1998), take a quite different view.
• They argue that judges have considerable freedom within the doctrine of precedent.
Kairys suggests that there is no such thing as legal reasoning, in the sense of a logical,
neutral method of determining rules and results from what has gone before.
• He states that judicial decisions are actually based on ‘a complex mixture of social,
political, institutional, experiential and personal factors’, and are simply legitimated, or
justified, by reference to previous cases. The law provides ‘a wide and conflicting variety’
of such justifications ‘from which courts pick and choose’.
• The process is not necessarily as cynical as it sounds. Kairys points out that he is not
saying that judges actually make the decision and then consider which precedents they
can pick to justify it; rather their own beliefs and prejudices naturally lead them to give
more weight to precedents which support those views. Nevertheless, for critical legal
theorists, all such decisions can be seen as reflecting social and political judgments,
rather than objective, purely logical deductions.
Griffith: Political Choices
• In similar vein, Griffith (1997) argues in his book The Politics of the Judiciary that judges
make their decisions based on what they see as the public interest, but that their view of
this interest is colored by their background and their position in society.
• He suggests that the narrow social background – usually public school and Oxbridge – of
the highest judges(see p. 168), combined with their position as part of established
authority, leads them to believe that it is in the public interest that the established order
should be maintained: in other words, that those who are in charge – whether of the
country or, for example, in the workplace – should stay in charge, and that traditional
values should be maintained.
• This leads them to ‘a tenderness for private property and dislike of trade unions, strong
adherence to the maintenance of order, distaste for minority opinions, demonstrations
and protests, the avoidance of conflict with Government policy even where it is
manifestly oppressive of the most vulnerable, support of governmental secrecy, concern
for the preservation of the moral and social behavior [to which they are] accustomed’.
Waldron: political choices, but why not?

In his book, The Law (1989), Waldron agrees that judges do exercise
discretion, and that they are influenced in those choices by political
and ideological considerations, but argues that this is not necessarily a
bad thing. He contends that while it would be wrong for judges to be
biased towards one side in a case, or to make decisions based on
political factors in the hope of promotion, it is unrealistic to expect a
judge to be ‘a political neuter –emasculated of all values and principled
commitments’.
Continued
• Waldron points out that to be a judge at all means a commitment to the values
surrounding the legal system: recognition of Parliament as supreme, the
importance of precedent, fairness, certainty, the public interest. He argues that
this itself is a political choice, and further choices are made when judges have to
balance these values against one another where they conflict.
• The responsible thing to do, according to Waldron, is to think through such
conflicts in advance, and to decide which might generally be expected to give way
to which. These will inevitably be political and ideological decisions. Waldron
argues that since such decisions have to be made ‘the thing to do is not to try to
hide them, but to be as explicit as possible’.
• Rather than hiding such judgements behind ‘smokescreens of legal mystery if
judges have developed particular theories of morals, politics and society, they
should say so up front, and incorporate them explicitly into their decision-
making’.
Advantages of Case Law
Consistency : This refers to the fact that like cases are decided on a like basis and
are not apparently subject to the whim of the individual judge deciding the case in
question. This aspect of formal justice is important in justifying the decisions taken
in particular cases.
Certainty : This follows from, and indeed is presupposed by, the previous item.
Lawyers and their clients are able to predict what the outcome of a particular
legal question is likely to be in the light of previous judicial decisions. Also, once
the legal rule has been established in one case, individuals can orientate their
behavior with regard to that rule, relatively secure in the knowledge that it will
not be changed by some later court.
Continued
• Efficiency : This refers to the fact that it saves the time of the judiciary, lawyers
and their clients for the reason that cases do not have to be reargued. In respect
of potential litigants, it saves them money in court expenses because they can
apply to their solicitor/barrister for guidance as to how their particular case is
likely to be decided in the light of previous cases on the same or similar points.
(It should of course be recognized that the vast bulk of cases are argued and
decided on their facts rather than on principles of law, but that does not detract
from the relevance of this issue and is a point that will be taken up later in Chapter
13 .)
Continued
• Flexibility . This refers to the fact that the various mechanisms by
means of which the judges can manipulate the common law provide
them with an opportunity to develop law in particular areas without
waiting for Parliament to enact legislation. In practice, flexibility is
achieved through the possibility of previous decisions being either
overruled or distinguished, or the possibility of a later court extending
or modifying the effective ambit of a precedent. (It should be
reemphasized that it is not the decision in any case which is binding,
but the ratio decidendi . It is correspondingly and equally incorrect to
refer to a decision being overruled.)
Disadvantages of Case Law
• Uncertainty :This refers to the fact that the degree of certainty provided by
the doctrine of stare decisis is undermined by the absolute number of
cases that have been reported and can be cited as authorities. This
uncertainty is increased by the ability of the judiciary to select which
authority to follow through use of the mechanism of distinguishing cases
on their facts. A further element leading to uncertainty was highlighted by
James Richardson, the editor of Archbold (1995), the leading practitioners’
text on criminal law, who has claimed that the lack of practical experience
of some judges in the Criminal Appeal Court is:
“. . . compounded by an apparent willingness, on occasion, to set aside
principle in order to do what the court feels to be right (either way) in the
individual case.”
Continued
• Fixity :This refers to the possibility that the law in relation to any
particular area may become ossified on the basis of an unjust
precedent, with the consequence that previous injustices are
perpetuated.
• Unconstitutionality :This is a fundamental question that refers to the
fact that the judiciary are overstepping their theoretical constitutional
role by actually making law rather than restricting themselves to the
role of simply applying it. This possibility requires a close examination
of the role of the courts in the process of law-making.
Do judges make law?
Although judges have traditionally seen themselves as declaring or
finding rather than creating law, and frequently state that making law is
the prerogative of Parliament, there are several areas in which they
clearly do make law. In the first place, historically, a great deal of our
law is and always has been case law, made by judicial decisions.
Contract and tort law are still largely judge-made, and many of the
most important developments – for example, the development of
negligence as a have had profound effects. Even though statutes have
later been passed on these subjects, and occasionally Parliament has
attempted to embody whole areas of common law in statutory form,
these still embody the original principles created by the judges.
Continued
Secondly, the application of law, whether case law or statute, to a particular
case is not usually an automatic matter. Terminology may be vague or
ambiguous, new developments in social life have to be accommodated, and
the procedure requires interpretation as well as application. As we have
suggested, judicial precedent does not always make a particular decision
obvious and obligatory – there may be conflicting precedents, their
implications may be unclear, and there are ways of getting round a
precedent that would otherwise produce an undesirable decision. If it is
accepted that Blackstone’s declaratory theory does not apply in practice,
then clearly the judges do make law, rather than explaining the law that is
already there. The theories advanced by Kairys, Griffith and Waldron all
accept that judges do have discretion, and therefore they do to some extent
make law.
Continued
• Where precedents do not spell out what should be done in a case before them, judges
nevertheless have to make a decision. They cannot simply say that the law is not clear
and refer it back to Parliament, even though in some cases they point out that the
decision before them would be more appropriately decided by those who have been
elected to make decisions on changes in the law.
• Thirdly, our judges have been left to define their own role, and the role of the courts
generally in the political system, more or less as they please. They have, for example,
given themselves the power to review decisions of any public body, even when
Parliament has said those decisions are not to be reviewed. And despite their frequent
pronouncements that it is not for them to interfere in Parliament’s law-making role, the
judges have made it plain that they will not, unless forced by very explicit wording,
interpret statutes as encroaching on common law rights or judge-made law. They also
control the operation of case law without reference to Parliament: an obvious example is
that the 1966 Practice Direction announcing that the House of Lords would no longer be
bound by its own decisions, which made case law more flexible and thereby gave the
judges more power, was made on the court’s own authority, without needing permission
from Parliament.
Continued
Explaining the decision in C (A Minor) v DPP (1995) , Lord Lowry suggested five factors
were important:
● where the solution to a dilemma was doubtful, judges should be wary of imposing
their own answer;
● judges should be cautious about addressing areas where Parliament had rejected
opportunities of clearing up a known difficulty, or had passed legislation without
doing so;
● areas of social policy over which there was dispute were least likely to be suitable for
judicial law-making;
● fundamental legal doctrines should not be lightly set aside;
● judges should not change the law unless they can be sure that doing so is likely to
achieve finality and certainty on the issue.
When should judges make law?
• Adapting to social change
• In 1952, Lord Denning gave a lecture called ‘The Need for a New
Equity’, arguing that judges had become too timid about adapting the
law to the changing conditions of society. They were, he felt, leaving
this role too much to Parliament, which was too slow and
cumbersome to do the job well (by 1984, he felt that judges had
taken up the task again). Lord Scarman, in McLoughlin v O’Brian
(1982), stated that the courts’ function is to adjudicate according to
principle, and if the results are socially unacceptable Parliament can
legislate to overrule them. He felt that the risk was not that case law
might develop too far, but that it stood still and did not therefore
adapt to the changing needs of society.
Continued
• Types of law
Lord Reid has suggested that the basic areas of common law are appropriate for judge-
made law, but that the judges should respect the need for certainty in property and
contract law, and that criminal law, except for the issue of mens rea, was best left to
Parliament.
Consensus law-making
Lord Devlin (1979) has distinguished between activist law-making and dynamic lawmaking.
He saw new ideas within society as going through a long process of acceptance.
At first society will be divided about them, and there will be controversy, but eventually
such ideas may come to be accepted by most members of society, or most members will at
least become prepared to put up with them. At this second stage we can say there is a
consensus. Law-making which takes one side or another while an issue is still controversial
is what Devlin called dynamic law-making, and he believed judges should not take part in it
because it endangered their reputation for independence and impartiality. Their role is in
activist law-making, concerning areas where there is a consensus.
Continued
• Respecting parliamentary opinion
It is sometimes argued that judges should avoid making law in areas of public interest
which Parliament is considering at the time. Lord Radcliff e suggested that, in such areas,
judges should be cautious ‘not because the principles adopted by Parliament are more
satisfactory or more enlightened, but because it is unacceptable constitutionally that there
should be two independent sources of law-making at work at the same time’.
Protecting individual rights
In a 1992 lecture, the human rights lawyer, Anthony Lester QC, argued that while judges
must have regard to precedent, they could still use their discretion within the system of
precedent more effectively. He argued that, in the past, judges have abdicated
responsibility for law-making by surrounding themselves with self-made rules. Since the
1960s, however, he feels that this tendency has gradually been reduced, with judges taking
on more responsibility for developing the common law in accordance with contemporary
values, and being more willing to arbitrate fairly between the citizen and the state. Lester
praises this development, arguing that the judges can establish protection for the
individual against misuse of power, where Parliament refuses to do so.