Describe the vertical and horizontal dimensions of the doctrine of binding precedent and

discuss how vertical precedent operates in England and Wales.

The doctrine of binding judicial precedent is a distinctive feature of the English law which
makes the reasoning and decision made by judges in previous cases binding on later courts
even if they do not approve of the decision that the previous court has given, this is known as
the rule of ‘stare decisis’.
Judicial precedent operates with reference to the court hierarchy i.e. the decisions of all
superior courts are binding on all courts below them as well as courts that are at the same level
as them. Also referred to as the concepts of vertical and horizontal precedent respectively.

Horizontal precedent; the extent to which a court is bound to follow its own previous decision.
The view in English law up until the mid-19th century was that the House of Lords (HL) are not
to be bound by their previous judgments so horizontal precedent was not a common concept
at this point in time. Then in 1898 the case of London Street Tramways was brought before the
HL in which they decided that to promote the idea of certainty and predictability in legal rules
they decided that they would from now on be bound by their previous decisions. This however
proved to not be the greatest idea as it led to the exact opposite of the Lords intention of
certainty as it was too restraining and there was little to no room for exibility which is the most
important factor in the development of common law. So as a way to remedy the situation the
lords released The Practice Statement in 1966; almost half a century later. The law lords
realized that “...too ridged adherences to precedent may lead to injustice in a particular case
and also unduly restrict the proper development of the common law...” they decided that they
would now be able to depart from decisions they saw to be un t. A carefully worded press
release was introduced alongside the Practice Statement which speci ed the limitations that
would be placed on the lords when and if they decided to depart from a previous case, as a
way to restrict themselves so they would use this use this new power sensibly. It speci ed that
court would only rarely depart from a decision; if the precedent was outdated; to keep English
law in step with other jurisdictions and would only very rarely would they depart from the
decisions in criminal cases because of the extra need for clarity because the civil liberties of
citizens are at stake.

The Supreme Court which has only recently come into being (by the CRA 2005); an evolved
form of the HL. The application of the practice statement in the Supreme Court can be seen by
the judgment in the case Austin v Southwark the judgment in which stated that the supreme
court did not think it necessary to reissue the practice statement as a fresh statement of
practice in the courts own name.

The practice statement is an example of how judges have made scope for exibility, while
maintaining certainty and predictability in the common law.
Judges have taken a prudent approach when using the practice statement for example is a
criminal case; Knuller v DPP, case that was related to namely the corruption of public morals,
the House of Lords decided not to overrule the precedent set by the case of Shaw v DPP. In
contrast the case of Andertone v Ryan was overruled. As lord bridge said: that if an incorrect
decision has been made and is the cause of distortion of the law then it must be changed as
soon as possible. The same pattern is followed for civil cases the judges do not simply depart
from decisions without a real and su cient reason. In Murphy v Brentwood District council the
HL departed from their decision in the case of Anns v Merton London Borough the decision in
this case was criticized and was very inaccurate and so it was overruled.

In the court of appeal the basic principle regarding horizontal precedent is that it is bound by
its own previous decisions. But exceptions to this rule exist which were stated out in the case
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 of Young v Bristol Aeroplane. Two of the situations stated in this case relate to horizontal
dimension of precedent.

i. two con icting precedents exist the courts may follow the one they prefer. National
Westminster Bank v Powney
ii.decisions were made ‘per incuriam’ (in ignorance) of some rule of law that was binding on the
court. Morelle v wakeling.

Other situations may arise where the court of appeal is allowed to depart from a previous
decision. On the issue of departing from their own previous decisions Lord Denning was a big
advocate of the court of appeal being allowed to depart from their own earlier decision much
like the house of lords but this debate was settle in the case of Davis v Johnson when the case
was heard on appeal although the house of lords overruled their own decision they took the
opportunity criticize Dennings approach and to make an unequivocal and profound statement
which emphasized that the court of appeal is never to depart from a decision of the house. The
pattern for horizontal precedent is the same in the criminal division but there is more exibility.

Horizontal precedent in the divisional courts of the high court is they are usually required to
follow their prior decisions. For the high court itself the decisions are persuasive (can be used
as a strong argument) but the court is not bound to follow them.

In the crown court the rules of horizontal precedent can sometimes create radical uncertainty
as the example laid out in Hales: history of pleas of the crown three di erent crown courts gave
di erent judgment on 3 cases with the same issue concerning marital rape.

The vertical dimension of precedent is that all courts bound courts beneath them in the
hierarchy. The supreme courts bound every court but no court can be binding up it.

Vertical precedent in the court of appeal is that the court is bound by the House of Lords’
previous decisions as well as the supreme courts it is binding upon all courts below it. On
occasions the court of appeal has tried to rid themselves of this restraint. For example in the
case of Casselle & Co Ltd where Lord Denning rejected a prior judgment made by the house of
lords. His tactic was frowned upon by the House as lord Hailsham in his statement said: that all
the courts lower down the hierarchy are to follow the decisions of the house including the court
od appeal and the court of appeal has no right to advice lower tier rst instant courts to deviate
for the decisions of the house of lords.

The divisional courts of the high court also bind the courts below them and they themselves
are bound by courts above them. The same goes for the crown courts.

It is safe to say that the system of binding precedent as can be observed by the activities of
the courts, is not a rule set in stone it is exible and is not as perfect in practice as it is in
theory. But it is followed to a larger extent than it is deviated from.
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