Legal System and Method

Doctrine of Binding Precedent

Introduction
By common law is meant that part of the law of England formulated, developed and administered by the old
common law courts, based originally on the common custom of the country and unwritten. One of the most
important characteristics of the common law is that it follows doctrine of binding precedent. Common law
developed through the system of precedent without reference to legislation passed by Parliament. Although
Statute has become the most prolific source of law in England, the doctrine of precedent, or stare decisis, lies at
the heart of the English legal system.

What is DOP?
The doctrine of binding precedent stems from the Latin maxim ‘stare decisis’ which loosely translate to ‘like cases
should be treated alike’. This essentially requires that two cases with the same or similar set of facts and on the
same point of law should bear the same judgment, so as to bring consistency and certainty to the application of
law. There are three aspects to the theory of stare decisis; firstly, what part of the judgment of a case is binding
on a subsequent case; secondly, there is the hierarchy of the courts; and finally, the precedential weight or status
of a particular decision.
It is accepted that it is only the ratio decidendi of a case which is binding on a subsequent case. The ratio is the
legal reasoning behind a decision. The rest of the judgment of a case is usually known as obiter dictum as things
said by the way. The modern view is that the ratio of a case is what is determined by a court in a later case and
not what the judge in the original case considered it to be. Thus, there is the scope that later judge may avoid
otherwise binding precedents by terming apparent ratio as to be no more than obiter statements.

What do we mean by ‘binding’?

To help us with this question, we are going to turn to the standard academic commentary on precedent. As Cross
and Harris point out (Precedent in English law (1991)) what distinguishes precedent in English law is ‘its strongly
coercive nature.’Cross and Harris comment that the doctrine of precedent has:
...Three constant features. These are the respect paid to a single decision of a superiorcourt, the fact that
a decision of such a court is a persuasive precedent even as far as the courts above that from which it emanates
are concerned, and the fact that a single decision is always a binding precedent as regards courts below that from
which it emanated.

Hierarchical structure of the court

The European Court of justice (ECJ) is the judicial arm of the European Union. In the field of community law, its
judgment overrules those of national court. The ECJ is not bound by its own previous decision and it is always
open to the ECJ to depart from its previous decisions when it considers it appropriate to do so. But its decision
binds all European courts including the Supreme Court of UK.
The Human Rights Act 1998 had incorporated the European Court of Human Rights (ECtHR) into UK law, making
the Supreme Court in matters related to its jurisdiction.

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The judicial committee of Privy Council, although essentially made up of the Justices of the Supreme Court, is not
actually a part of the English legal system. Consequently, its decisions do not fit within the hierarchical structure
of the English system and its decisions are not binding on any English court, although its decisions are of extremely
strong persuasive authority.
The Supreme Court
The Supreme Court came into being on October 2009, replacing the Appellate Committee of the House of Lords.
The Supreme Court is now the highest court in the UK. The Supreme Court has been established to achieve a
complete separation between the United Kingdom’s“senior Judges and the Upper House of Parliament,
emphasising the independence of the Law Lords and increasing the transparency between Parliament and the
courts”. The Supreme Court decisions are binding on all other courts in English legal system, except the Supreme
Court itself. The House of Lords was bound by its own previous decision until it changed this practice in 1966. The
practice was eventually changed in July 1966 when Lord Gardiner, the Lord Chancellor made a statement on behalf
of himself and his fellow Lords that now house of Lords is not bound by any English court, even itself.
In Conway V Rimmer , the HL unanimously overruled Duncan V Cammell Laird and Co. In the earlier case, the HL
held that an affidavit sworn by a government minister was sufficiently to enable the crown to claim privilege not
to disclose documents being inspected by the court. In the later case, their Lordships held that the minister’s
affidavit was not binding on the court.
In DPP for Northern Ireland v Lynch, the HL decided that duress was available as a defence to a person who had
participated in a murder as an aider and abettor. Twelve years later, the HL overruled that decision. It held in R v
Howe that the defence of duress is not available to a person charged with murder or as an aider and abettor to
murder.
The Court of Appeal
The Court of Appeal is divided into civil division and criminal division. In civil cases, the CA is generally bound by
previous decisions of Supreme Court. The CA generally is also bound by its own previous decisions in civil cases.
There are, however, a number of exceptions to this general rule. Lord Greene MR listed these exceptions in Young
V Bristol Aeroplane Co Ltd.
●Where there is a conflict between two previous decisions of the CA.
●Where a previous decision of the CA has been overruled either expressly or impliedly by the Supreme Court.
●Where the previous decision was given per incuriam or, in other words, that previous decision was taken in
ignorance of some authority, either statutory or case law, that would led to a different conclusion.
There is also the possibility that as a consequence of S-3 of the European Communities Act-1972, the CA can ignore
a previous decision of its own which is inconsistence with EC law or with the later decision of ECJ.
S-2 of HRA-1998 requires all courts and tribunals to take into account any judgment, decision, declaration or
advisory opinion of the ECtHR.
Although on the basis of R V Spencer it would appear that there is no difference in principle between the operation
of the doctrine of stare decisis between the criminal and civil divisions of the CA, it is generally accepted in practice,
precedent is not followed as strictly in the former as it is in the latter. Court in the criminal division is not bound
to follow their own previous decisions that they subsequently consider to have been based on either a
misunderstanding or a misapplication of the law.

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High Court
As for the Divisional Court, it is bound by all decisions of the Supreme Court and CA, while its decisions are binding
on the inferior courts. As for its own previous decisions, the Divisional Court can avail itself of the exceptions in
Young V Bristol Aeroplane Co Ltd. The same rules apply for the High Court as well, except that its own decisions
are never binding on it, although they are of persuasive strength.
Courts below the High Court level do not have the jurisdictions to create precedents. They just follow the
precedents of the higher courts.

Exceptions of DOP
The main mechanisms though which judges alter or avoid precedents are as follows-
Overruling: This is the procedure whereby a court higher up in the hierarchy sets aside a legal ruling established
in a previous case.
Reversing: Reversing is the procedure whereby a court, higher in the hierarchy reverses the decision of a lower
court in the same case.
Distinguishing: If a court can find sufficient differences between the material facts of a previous and a current
case, then it may depart from the previous decision. It may also be that although a judge is bound by a precedent
in a particular case, there are good reasons why the judge may wish not to follow it. In these circumstances it is
likely that the judge will try to distinguish the precedent, so as to avoid having to follow the previous decision. The
defendant in Boardman V Sanderson knew that the father was in the vicinity, which makes the case quite easy to
distinguish from King V Philips where neither the taxi driver nor a ‘hypothetical reasonable observer’ would have
foreseen any injury to the boy’s mother. Where there is a significant difference between the facts of two cases,
the previous case is distinguished in the present case.

Court of Appeal vs House of Lords

It is an established principle of doctrine of precedent that lower court should follow the decisions of higher courts.
However, some recent development especially in the area of provocation, have challenge this principle. It is
established law that in order to successfully plead provocation, the defendant needs to prove two things:
a. The D was provoked to lose self control. (Subjective)
b. A reasonable man in place of the D would have also lost his self control and do the same thing as the D did.
(Objective)
While the subjective test is not problematic, the development of the objective test was anything but simple.
According to R V Camplin the reasonable man must be of the same age and gender as the D. However, cases such
as Humphreys, Dryden left the question unanswered as to which characteristic of the D become part of the
reasonable man. The Privy Council in Luc Thiet Thuan held that characteristic such as alcoholism, drug addiction
and mental abnormality should not be a part of the reasonable man. They reconfirmed this decision in AG for
Jersey V Holley. On the other hand the House of lords in R V Smith (Morgan) held that anything and everything
which may defect the gravity of provocation should become a part of the reasonable man. The Court of Appeal in
Faquir Mohammad chose to follow the Privy Council decision instead of House of Lords. This was also repeated in
R V James and R V Karimi. The Court of Appeal choose to follow persuasive authority instead of binding authority
has challenge the very ideas of which doctrine of binding precedent is based.

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Should lower tier loyally accept the decision of higher tier?
All courts in UK bind the courts lower to it. However, the courts below to the High Court do not create precedent.
Because of certain decisions of Court of Appeal a doubt arose how much the CA was bound by the decision of HL.
In Broome V Cassell, the CA held that the HL had been wrong in its view in Rooks V Bernard. In coming to this
conclusion, the CA pointed out that while deciding the Rooks, the HL had failed to take into consideration Hulton
V Jones and Ley V Hamilton. According to CA invoked that the HL acted per-incurium. When the case went to the
HL, it severely rebuked the stand taken by the CA. Lord Hailsham in his judgment observed that, “It is not open to
the CA to give gratuitous advice to the of first instance to ignore decision of the HL, in the hierarchical system of
courts which exists in this country, it is necessary for each lower tier including the CA, to accept loyally the decision
of higher tiers”. To ignore the decision of higher tier is definitely the contradictory role of the doctrine of
precedent. To bring the consistency and efficiency of judiciary in the hierarchical system of courts, each lower tier
must follow the decision of higher tier loyally.

Can the CA issue a practice statement like that of HL issued in the year 1966
declaring that it will be free to depart from its earlier decision?
The Practice of Precedent works within the context of the court structure. London Tramway V London City Council
(1898) was central to the foundation of what was to became the conventional form of the doctrine. Here House
of Lords decided that it was bound by its own previous decisions. The next issue comes for contemporary judicial
practice is the Practice Statement of 1966. The Practice Statement created principles that stressed the need for
the flexible development of the law.It might be looked surprising that an important Court like Court of Appeal
(Civil Division) does not have the power to depart from its earlier authorities. It may be mentioned, that the CA
(Civil Division) is the most important civil court of England and Wales, disposing almost 3,500 cases in a year (the
Supreme Court dispose of 60-70 cases in a year). In C V S, Lord Donaldson MR observed that in the cases of utmost
urgent matters, the decision of this court may be treated as final without waiting for the decision by the Supreme
Court. But, this court is handicapped by the fact that it cannot depart from its earlier authorities, apart from the
exceptions laid down in the Young V Bristol Aeroplane Co. Ltd. But this provision is unsatisfactory, and should be
changed, and Dening MR was of the opinion that like the Supreme Court, the CA (civil division) can depart from
its earlier decision, since precedent is a matter of practice by the court. Keeping this view in mind, in Davis V
Johnson, Lord Denning professed that the CA is not given the power to depart from its earlier decision, then a
wrong may be perpetuated, because it may be that the same case will never reach the HL. Further, according to
him, many intermediate courts like CA all over the Commonwealth have been given power to depart from their
earlier decisions, then why Court of Appeal (Civil Division) shall be an exception. However, this attitude of Denning
was regarded by the House of Lords as one man crusade to free the CA from the shackles of precedent and the
HL disapproved this.
However, it is argued that the CA (Civil Division) should be given the power to depart from its earlier decisions,
since it is the most important civil court in the practical sense. If this court is given the power to depart, obviously,
the law will be develop in a more consistent manner keeping pace with the need of time.

Judicial law making

Our starting point for a consideration of this theme is Lord Scarman’s speech in McLoughlin Appellant v O’Brian
(1983). Lord Scarman argues that judges do create law:
…Here lies the true role of the two law-making institutions in our constitution. Byconcentrating on
principle the judges can keep thecommon law alive, flexible andconsistent, and can keep the legal system clear of
policy problems which neither they, northe forensic process which it is their duty to operate, are equipped to

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resolve. If principle leads to results which are thought to be socially unacceptable, Parliament can legislate to draw
a line or map out a new path.
The law making power of the judge is subordinate to that of Parliament. Judges try to limit their law making.

Judicial law making and human rights

The HRA has opened up a new set of issues around judicial law making. The scope of ss.2, 3 and 4 of the HRA and
the judicial perception of the HRA can be ascertained in the following statements:
…[T]he HRA reflects a careful balance between Parliament, the Executive and Judiciary. It is not
entrenched and denies the courts the capacity to ‘strike down’ legislation for incompatibility. As Connor Gearty
puts it, declarations of incompatibility ‘are courteous requests for a conversation, not pronouncements of truth
from on high.’ In this way the Act specifically preserves Parliamentary sovereignty. If Parliament or the Executive
disagree with a decision it remains open to them to change the law.
In this statement Lord Dyson points out the Act does not compromise Parliamentary sovereignty; it has created
what some commentators have called a ‘dialogue’ between the courts and Parliament on human rights.
This view is supported by Lady Hale:
Secondly, the Human Rights Act does not require us to follow the Strasbourgjurisprudence, but it does
require us to ‘take it into account’ (section 2(1)). The courtshave given this a purposive interpretation. As the
purpose of the Human Rights Act wasavowedly to ‘bring rights home’ and avoid the need for people to take their
cases toStrasbourg, we should take into account their jurisprudence with a view to finding outwhether or not the
claimant would win in Strasbourg.
A sovereign Parliament is, according to the traditional view, immune from judicial scrutiny because it is protected
by the principle of sovereignty. But it shares with the devolved legislatures, which are not sovereign, the
advantages that flow from the depth and width of the experience of its elected members and the mandate that
has been given to them by the electorate. This suggests that the judges should intervene, if at all, only in the most
exceptional circumstances. But the rule of law requires that the judges must retain the power to insist that
legislation of an extreme kind which attacks the rule of law itself is not law which the courts will recognise.
It is important to get a sense of how this dialogue has developed. In particular, how the judges seized upon the
HRA to develop a law of privacy. How is this justified? The reasons are twofold. First, equity and the common law
are today in a position torespond to an increasingly invasive social environment by affirming that everybody hasa
right to some private space. Secondly, and in any event, the Human Rights Act 1998requires the courts of this
country to give appropriate effect to the right to respect forprivate and family life set out in Article 8 of the
European Convention on Human Rights and Fundamental Freedoms (Venables and Thompson v Newsgroup
Newspapers [2001] HRLR 19 at H8).
This is entirely consistent with Parliamentary sovereignty; the HRA ‘requires the courts of this country to give
appropriate effect to the right to respect for private and family life’ as stated in the ECHR.

Do judges actually make law?

According to declaratory theory of law, judges declare the law, and by declaring a law, they are creating law.
Examples of this proposition may be drawn from Donoghue V Stevenson, by which case the judges developed the
concept of neighbor principle; or R V R, where the concept of marital rape was recognized. Other instances of
similar importance may be cited. There are three difficulties in accepting that precedents as laws. Firstly, the
precedents bind the lower courts only and not the higher court, then the situation stands that some courts are

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under the law, and some are above the law. Secondly, the precedents are retrospective in operation and as such
if they are regarded as laws, then it would violate the principle of rule of law. Thirdly, if precedents are regarded
as laws, then it will infringe the principle of separation of powers, since it is the parliament which shall make law
and not the court. Therefore the better view is that precedents are evidence of laws, and not laws themselves.
Judges are declaring what is the best evidence of a law, and not declaring the laws.

Conclusion
The foregoing has set out the doctrine of binding precedent as it operates in theory to control and indeed limit
the ambit of judicial discretion. It has to be recognized, however, that the doctrine does not operates as stringently
as it appears at first sight and that there are particular shortcomings in the system that have to be addressed in
weighing up the undoubted advantages (e.g. consistency, certainty, efficiency and flexibilty) with the equally
undoubted disadvantages (e.g. uncertainty and fixity).

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