The Doctrine of Precedent in English Law - Essay Example

?Doctrine of Precedent The doctrine of precedent in English law encompasses two closely connected ideas. In its wider sense, precedent entails considering previous decisions as legal authority that can serve as good legal reasons for decisions to be made subsequently. On the other hand, in its narrow sense, precedent makes it incumbent for judges to regard certain prior rulings, especially those of the superior courts, as binding. 1 As such, the common law method is founded on the doctrine of precedent, which constitutes the conceptual medium for bringing about the merger of law and justice. It has generally been observed that the pragmatic value of precedent gains prominence, whereas its justice seeking aspect tends to be overlooked. As such, precedent is the intersection between law and justice.2 In England and Australia, the highest courts tend to regard the decisions of their lower but superior courts as being highly persuasive. For instance, the highest court of Australia, namely the High Court of Australia accords considerable importance to the rulings made by the Supreme Courts of the various states. Precedent in its narrow sense, or the doctrine of stare decisis, denotes that the courts of appeal, in the normal course, consider themselves bound by their own rulings. 3 An important illustration of this is provided by the stance of the House of Lords till the year 1966. Prior to that year, their Lordships had considered their previous decisions to be sacrosanct, and had stated that they would not overrule them. This has changed, and the highest courts of Australia and the UK have now adopted the view that they would decide contrary to their previous rulings, provided there was a very strong reason for such departure. 4 Despite the promotion of certainty and consistency by the doctrine of precedent, it does suffer from some drawbacks. For instance, a lower court faced with binding precedent, may be compelled to decide on the basis of a rule that is unjust in the opinion of the judge. Moreover, an unjust rule may prevail for years, before being revised by a court with the necessary superiority. Furthermore, certainty does not always ensue from the doctrine of precedent. This is due to the fact that the statements of judges in previous cases may not be clear. Even if the statements made in previous cases are clear, there could be confusion as to whether that statement had been a component of the ratio decidendi of that case.5 This makes it difficult to decide whether it had been binding or was just obiter dicta. Another major issue is the following. In Australia, appellate cases are usually heard by three judges in the Supreme Courts of the states. The corresponding number of judges is five in the High Court. It has been frequently observed that these judges will generally provide individual judgements. The result is several sets of legal reasons. Moreover, it is common for each judge to express opinions that differ from the other judges hearing the case. Such differences could have a critical impact upon subsequent cases. Consequently, it becomes very difficult to identify what is binding.6 Although it seems that the doctrine of precedent could hinder change and development in the law, this is only partially true. The development and change in law is a continuous process, which is on the whole unspectacular. Precedent is not interpreted in a mechanical manner, and the extant law tends to be subjected to a continuous process of analysis and reinterpretation. Past events are reinterpreted by each generation, and this changes history. Similarly, the extant law undergoes continuous reinterpretation and is comprehended afresh.7 Thus, whenever, a superior court judge examines a disputed legal point and there is a reporting of the decision taken by the judge, a certain amount of change transpires in the totality of the common law. In Davis v Johnson,8 the substantive issues considered related to the degree of discretion bestowed upon county courts by section 1 of the Domestic Violence and Matrimonial Proceedings Act 1976,9 while making exclusion orders, and its application in situations where a male and female were living together in the same household as husband and wife.10 The ruling of the House of Lords in this case went beyond the mere facts of the case. Thus, it was not limited to determining the rights of Davis as a co – owner with Johnson, with regard to the tenancy provided by the Hackney Council. Davis and the violent Johnson had been residing in this tenancy with their two and half year old daughter.11 Thus, in Davis v Johnson,12 a non – molestation order had been made under the provisions of the Domestic Violence and Matrimonial Proceedings Act 1976. Most of the judges of the Court of Appeal who had been empanelled by Lord Denning in this case, were of the opinion that they could ignore precedent. 13 In fact, it was the objective of Lord Denning to establish that the Court of Appeal was entitled to depart from its previous decisions. He rightly stated that several instances of bad law were not addressed by the House of Lords due to the high cost of litigation. Moreover, a wrong ruling compelled the lower courts to pass judgement on matters that were patently wrong, because of the significant delay in these cases being heard by the House of Lords.14 Lord Denning strived to prove that the doctrine of precedent was merely a custom of the courts and not a legal principle. The importance of this contention lies in the fact that if precedent were to be deemed to be a court custom, then the courts would be at liberty to revise this practice. However, if it were to be established that precedent was a legal principle, then stare decisis would bind itself. In other words, only the House of Lords would have the authority to decide whether the Court of Appeal could depart from its previous decisions. It was suggested by Sir George Baker that such novel exception should have a slightly narrower scope. In his opinion, it was to be granted only where a decision was wrong and seemed to diverge from the intentions of Parliament. 15 The House of Lords, apparently did not penetrate into the depths of this case, while rebuking the Court of Appeal for trying to free themselves from the shackles of precedent. All the same, the decision in Davis v Johnson was a foregone conclusion, and would have cropped up through an appeal, wherever the issue could have been addressed as a ratio. This ruling of their Lordships effectively emasculated any further attempt by the Court of Appeal to escape precedent. The Court of Appeal cannot depart from the decisions made by the House of Lords. In addition, its decisions bind the courts that are lower in the hierarchy to it. However, certain amount of flexibility with regard to the application of the doctrine of stare decisis is allowed to the Court of Appeal, with regard to criminal cases. This provision emerges from the realisation that these rulings relate to the liberty of individuals.16 Thus, previous authorities are deemed to be sources, as per the common law. Obvious justification for following the conclusions arrived at by another individual is difficult to establish. These conclusions relate to the demands of justice in some specific case. It is not apparent, as to why such conclusions have to be accepted in subsequent cases. The votaries of precedent state that it promotes predictability and permits the equal treatment of citizens. Nevertheless, it seems peculiar to employ precedent, merely on the grounds that it had been used in the past. Several scholars have pointed out that precedent could endanger reason or justice.17 In addition, the following case law reveals the attitude of the courts in deciding cases by considering the precedent. For example, in the year 1966, the Lord Chancellor proclaimed a practice direction, whereby the House of Lords would not deem itself to be bound by its previous decision. It is crucial to realise that this direction applies only to exceptional circumstances. In the usual course their Lordships would follow their previous decisions, unless they were convinced that such a course of action would result in injustice.18 In the UK’s judicial hierarchy, the Court of Appeal comes second, and considers itself bound by the rulings of its higher court. This state of affairs, regarding precedent, was distasteful to the Master of the Rolls, who at that juncture was the redoubtable Lord Denning.19 Moreover, in Street v Mountford,20 the ruling of the House of Lords provided the principles for establishing whether the occupation of a property was a lease or a licence. A term of occupation was provided by Street to Mountford on rent. In several places, the written agreement related to the occupation, stated that it was a licence. Moreover, there were a number of clauses that implied that Street retained the right to entry and termination. Furthermore, several restrictions were specified with regard to what Mountford could do on the property. 21 This agreement had been drafted, with a view to circumvent the provisions of the Rent Act 1977. On the other hand a tenancy would afford Mountford with the protection available under the Rent Act 1977. Mountford initiated legal action seeking protection under the Rent Act 1977. Their Lordships gave the important ruling that an agreement for exclusive possession for a term on the payment of rent constituted a tenancy or lease. This was independent of what the parties preferred to term it.22 Thus, precedent places a decision that is not optimal at high risk. For instance, in R v Gould23 it was held that the honest conviction that a previous marriage had been dissolved was a good defence to the charge of bigamy. This was a significant departure from the previous authority, namely R v Wheat,24 in which it had been held that such defence was inadmissible as bigamy was a strict liability offence. 25 In his judgement, Lord Justice Diplock stated that the Court of Appeal in its criminal jurisdiction, does not apply the doctrine of stare decisis with the same rigidity as it does in its civil jurisdiction. Nevertheless, some subsequent ruling have tended to promote the presumption that the Court of Appeal usually remains bound by its previous decisions.26 As such, the previous rulings of the House of Lords have a binding effect on the rulings of the Court of Appeal. Moreover, the decisions of the Court of Appeal bind its subsequent rulings, as well as the rulings of its lower courts. Nevertheless, there are certain exceptions to this rule. If a previous decision is contrary to a later decision of the House of Lords, then the decision of the House of Lords will have to be enforced.27 Furthermore, if there are two conflicting previous decisions, then the court has to select between them. This was clarified by Gibson J, who declared that the court had the discretion to apply the ratio of the earlier decision and to refuse to adhere to the later decision. Moreover, the court can depart from a previous decision that had been rendered per incuriam or without the necessary care.28 However, Lord Denning had opposed the system, wherein the Court of Appeal was not permitted to depart from precedent. It was his considered opinion that the doctrine of precedent imposed unwarranted limitations on the proper growth of law. But, other members of the judiciary were reluctant to adopt such a drastic stance. In fact, they recognised the advantages provided by the self binding principle with specific exceptions, in which discretion could be exercised. These judges took cognisance of the fact that precedent in operation was bestowed with certainty and flexibility. Bibliography Bader WD and Cleveland DR, ‘Precedent and Justice’ [2011] 49 Duquesne Law Review 35. Bradley D, ‘Domestic Violence and Matrimonial Proceedings Act 1976’ (1978) 41(5) Modern Law Review 592. Byrne G, ‘Authenticity as a Justification for Precedent’ (2012) 8(2) Legaldate 219. Davis v Johnson [1978] 2 WLR 553. Domestic Violence and Matrimonial Proceedings Act 1976. Gillespie A, The English Legal System (Oxford University Press 2007). Hondius E, ‘Precedent in East and West’ (2005) 23 Penn State International Law Review 521. Mitchell A, As Law (3rd edn, Taylor & Francis 2008). Rent Act 1977. R v Gould [1968] 2 QB 65. R v Wheat [1921] 2 KB 119. Street v Mountford [1985] UKHL 4. Williams CR, ‘The theory and practice of precedent’ (1998) 10(2) Legaldate 1. Read More