Establishing Precedence: When is it Binding - Essay Example

RUNNING HEAD: ESTABLISHING PRECENDENCE – WHEN IS IT BINDING? Establishing Precedence: When is it Binding? School Establishing Precedence: When is it Binding? The British Constitution is not a formalised, codified document containing a specific set of laws and rules designed hundreds if not thousands of years ago. Rather the British Constitution in a compilation of hundreds of years of laws, customs and mores, and whilst some would argue this fluidity allows the constitution to have a life and breathe of its own and imbibe that of a living being changing with the times, the mere fact that it is not formalised has led to a continuous debate as to its true nature. Noted jurist A. V. Dicey stated: The law of the constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the courts; that, in short, the principles of private law have with us been by the action of the courts and Parliament so extended as to determine the position of the Crown and its servants; thus the constitution is the result of the ordinary law of the land.1 Dicey is stating that unlike written forms of Constitution, the British Constitution is an evolving conceptual embodiment of the will of the people, not a document that forces its will upon the people. As such, the interpretation needed to set precedence and decide matter of law becomes more contentious. In citing his opinion, Lord Jessel in Osborne v Rowlett (1880) 13 ChD 744 stated: Now I have often said, and I repeat it, that the only thing in a judge’s decision binding as an authority upon a subsequent judge is the principle upon which the case was decided; but it is not sufficient that the case should have been decided on a principle if that principle is not itself a right principle, or one not applicable to the case; and it is for a subsequent judge to say whether or not it is a right principle, and, if not he may himself lay down the true principle. In that case the prior decision ceases to be a binding authority or guide for any subsequent judge. Lord Jessel was, in effect, stating implicitly that no precedent set is, in and of itself, binding. Rather, it is the subsequent duty of jurists to decide each case on its merit with regard to and with reference to matters of law. If a subsequent jurist finds error in previous decisions he shall not be bound by them, but rather has an obligation to correctly set forth the correct or true interpretation. Within the power of the government lies a separation between Parliament and the Judiciary. The Sovereignty of Parliament has long been established and one of the three basic premises of its supremacy is that only Parliament may make laws. It is the Judiciary’s responsibility to apply the law, that is interpret the meaning of Parliamentary Acts. The debate is centred on the belief by some that jurists may, instead of following the letter of the law, rule on what the see as the purpose behind it. This grey area opens the possibility that jurists may be undermining the sovereignty of Parliament. However, if one is to follow the letter of the law there are have been established three rules of statutory interpretations that jurists are bound by: The Literal Rule, the Golden Rule and the Mischief Rule.2 In the Literal Rule the jurist interprets the law, that is, literally as it is written in every terminology. Whiteley v Chappell [1868] 4 LR QB 147 illustrates the fine point of the literal interpretation. In this case the defendant contrary to the Poor Law Amendment Act 1851 (PLAA) assumed the identity and voted in the place of another man who had died. The court held that per the PLAA as the law which stated ‘a person entitled to vote’ literally meant that the impostor was entitled to vote at the time because the ‘real’ voter was dead whilst the criminal was impersonating him and therefore not entitled to vote. The defendant was found not guilty. The Golden rule is illustrated in Becke v Smith [1836] 2 M&W 195. Per Parke B. as cited in the finding the literal interpretation of the law makes perfect sense unless it strays from intent of the law and leads to any manifest absurdity or repugnance, in which case the language may be varied or modified, so as to avoid such inconvenience, but no further.” Adler v George [1964] illustrates this further. The defendant in this case was charged with violating Official Secrets Act 1920 in that he obstructed a member of “His Majesty’s forces” while he was in the vicinity of a prohibited place. The defendant had gained access to the station and while the law read in the vicinity it was argued he could not be in the vicinity if he was in fact on the station. Although the literal translation would have denied the appeal the intent was clear and because of the Golden Rule the defendant’s appeal was dismissed. The third rule, the Mischief Rule asks the court to consider four points: the common law before the act was done; what was the mischief done and what was defective in the law; what has Parliament done to correct or resolve the error; and what is the true reason for the correction.3 The intended outcome of this rule is for the jurist to correctly interpret in the law in a manner that furthers the remedy or solution while eliminating or minimising the mischief. In Smith v Hughes [1960] ALL ER 161 contrary to the Street Offences Act 1959 which prohibits prostitutes “to loiter or solicit in a street or public place for the purposes of prostitution" the defendants was at a first floor window tapping on the male passer-by’s and soliciting them. The defence argued that she was not on the street and therefore had committed no crime. Whilst applying the Mischief Rule Lord Parker found: For my part I approach the matter by considering what is the mischief aimed at by this Act. Everybody knows this was an Act to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes. Viewed in this way it can matter little whether the prostitute is standing in the street or in the doorway or on the balcony, or at a window, or whether the window is shut or open or half open. The appeal was denied. Having discussed these three rules of law brings us to precedence. A judicial precedent is defined as “previous decision of the court which is used as a source of future decision.”4 As in all court systems case records are maintained and used for future reference and guidance in deciding cases. English Common Law is unique from codified forms in that in certain situations case precedent is binding upon the jurist when applying them to future cases. Stare decisis, to stand upon decisions, is known as the Doctrine of Binding Precedent. Following are the general propositions which dictate when precedent becomes binding: “A single decision of a superior court is absolutely binding on subsequent inferior courts. A court must follow a relevant decision of an immediately higher court even if it appears to conflict with the decision of a still higher court. Furthermore, certain of the superior courts regard themselves as bound to follow their own previous decisions”5 Contrary to Lord Jessel’s supposition earlier it is not always possible to ignore precedent even if it is believed by the jurist not to be a true principle. As demonstrated in the above examples of binding precedent, the jurist must rely that when he believes a precedent held by a higher court is wrong it must still be upheld. Only can a higher court on appeal can reverse the decision or in the case of superior court they may reverse their own ruling. When contemplating the theoretical implications of precedent, two primary theories are prevalent: Declaratory and Realistic. Each has a distinction. The declaratory theory is purist in natures. This theory hypothesises that decisions handed down by jurists are not, in fact, altering common law, but merely restating it. Nothing is added to or deleted from the common law as established, but rather points of law are noted by jurists are in effect “declaring the law on the basis of past decision.”6 As one would expect the realistic theory takes the other stand. According to this theory all rulings are, in effect, changes to and additions to or deletions from common law. The origin of the common law and the law itself is altered by each court case decided. “All principles must originally come from somewhere, and the abstraction of old principles is the creation of new law.”7 Lord Blackstone stated: the former determination is most evidently contrary to reason; more if it be clearly contrary to divine law. But even in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared not that such a sentence was bad law, but that it was not law, that is, not the established custom of the realm, as has been erroneously determined8 When assigned a case a jurist does far more than is observed in the court room. He will spend hours reviewing the facts of the case and laying out the precedent and making observations regarding points of law. It is important to note that only those points of law that are essential to the findings of the case and become binding for future application. This is, in Latin, ratio decidendi, “the proposition of law essential to the decision on the facts as found.”9 The dissenting opinions, those points of law without direct bearing on the finding of fact, are not binding but may be considered as persuasive for future cases. These findings are referred to as obiter dicta and often there is only a fine distinction between the two. Therefore the first task is to ascertain what the material or essential facts in a case were, because the decision will only be binding where these facts are repeated. Then, by looking at the conclusion, it is possible to determine what is the ratio of the case in question. Thus, the fewer the facts which are material, the wider will be the application of the case.10 There are several reasons why obiter dicta findings or persuasive precedents are not held as binding. First as contained in the doctrine of binding principle as explained above “people in like cases should be treated in the same say.”11 As persuasive arguments do no meet the ratio required to be binding there is some deviation within the case which was considered leading to a persuasive versus a binding precedent. Additionally, each and every ruling made by a court contains precedent. If jurists were to be bound by persuasive precedent, by sheer volume, the courts would be overwhelmed. Lastly, by the sheer nature of their peripheral application, in many cases, to the case before them, persuasive precedent may not be as thoroughly researched and considered with as great a magnitude as are ratio decidendi. The danger then would be in attaching a binding principle to persuasive precedent, opens the possibility that bad law would result and further become binding. If not researched as fully and all points of law considered in relation to a persuasive precedent this could very likely occur. One other frequent term to consider is ratio decidendi. In instances such as this the jurist cites two material reasons for a decision; if that is the case, they both becoming binding to future application. Such was the case in Jacobs v LCC [1950] AC 361 where the court in its finding extended the precedent to include two points of law.   But the deceased certainly was an invitee on the premises belonging to the defendants and as such they owed a duty to the deceased that he would not be placed in a position of danger or create a dangerous situation whereby injury would be caused to him. On the evidence before me I held that the defendants’ servant, the foreman DW2 was negligent in the manner by which he handled the situation. The court in this case extended the ratio decidendi from the defendant’s responsibility to the licensee (This was later in the Occupiers’ Liability Act 1957 clarified to reflect no distinction between licensee and leasee.) ensure they were aware of potential hazards due to disrepair. The court found further that not only did they have a duty but negligence on the part of the licensee did not mitigate that responsibility. Jurists when ruling it should be noted rule on points of law not on the specific instances of each case, which is the individual circumstances. This is an important distinction. Therefore, what binds a precedent are not the specifics of an individual case, per se, but the point of law upon which it centres. It is this, the point of law, which then makes a case a binding precedent. This was displayed in Qualcast (Wolverhampton) Ltd. v. Haynes [1959] A.C. 743. In this case it was held that” whether or not a duty has been breached is a question of fact to be determined according to the specific circumstances of each case. For this reason, precedents are of value only in terms of the general principles which they establish. In this case the court held that the material facts of the law were not what established the precedent of the case but rather the ruling was based on the rules of law. In this specific case the court held that whether or not an employer failed to provide employees with proper instruction on the use of protective equipment to be used in the course of their duties was not a rule of law rather was facts of the particular case and therefore was not binding.12 To that end each individual case must be ruled on for the specific merits of the material facts not based on the material facts of past precedent. The House of Lords as the highest court in Britain binds all other courts. However, this court does not bind itself. They may over turn prior precedent they have set. Prior to 1966, the House of Lords had followed precedent set in London Street Tramways v LCC [1898] AC 375 which held that “a decision of this House once given upon a point of law is conclusive upon this House afterwards.” 1966, held a major change of the Hose of Lords when Lord Chancellor stated: Their Lordships regard the use of a precedent as an indispensable foundation upon which to decide what the law is and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case, and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of the House as normally binding, to depart from a previous decision when it appears right to do so. In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the special need for certainty as to the criminal law. This announcement is not intended to affect the use of precedent elsewhere than in this House. So although in this instance for the first time the House of Lords made the decision to break from strict adherence to set precedent, it was explicitly stated that only the House of Lords, Britain’s highest court would not be bound by their own precedent. It did not extend this to the lower courts. The House of Lord’s first case where this was demonstrated was Conway v Rimmer [1968] AC 910. This case posed for the first time the question of a balancing on which was the greater of two goods to uphold - the requirements of justice or the public interest. The court held that requirements of justice would be held with the Minister as withholding the documents requested for public scrutiny was the courts final decision. The court, however, did not expound on the boundary of public interest. Conway was followed by Miliangos v George Frank (Textiles) Limited [1976] AC 443. In this case involving the international sale of textiles from a Swiss supplier to a UK trader and the method of payment, the court overturned its past precedent and order payment made in other than pound sterling. This was done to equalise the dramatic change in the exchange between the Swiss Franc and the Pound that occurred after the Swiss supplier defaulted. This precedent established that the court establish the large circumstances surrounding the case and arrived at it decision based on that. In the case of Miliangos, Lord Wilberforce stated: I cannot accept the suggestion that because a rule is long established only legislation can change it - that may be so when the rule has infected the whole legal system, or the choice of a new rule involves more far-reaching research than courts can carry out. Another example of the court overturning its own precedent was held in Herrington v British Railways Board [1972] AC 877 which overturned Addie v Dumbreck [1929] AC 358. In this case a small child was injured whilst playing inside railway line property. The rail board had known that children generally snuck through a gap in the fencing but had done nothing to prevent their entry and reinforce the barrier. The board was held liable for the child’s injury even though she was, in effect, trespassing. The court reversed their earlier precedent set in Addie v Dumbreck by for the first time stating that the owner had a duty and responsibility to protect the child even if he was trespassing. Likewise, then the Occupiers Liability Act 1984 extended that protection to trespassers. The Court of Appeal is the other court that set precedent for its ability to not be bound by its previous rulings. Although the court did find that it would be bound in all but three instances. This was held in Young v Bristol Aeroplane Co Ltd [1944] KB 718. This case held the three distinct cases where the Court of Appeal would not bind itself. They are: “Where the court was faced by previous conflicting decisions of the Court of Appeal it could choose which to follow. Secondly, where a previous decision of the court, although not expressly overruled, could not stand with a subsequent decision of the House of Lords, the decision in the House of Lords had to be followed. Thirdly, a decision of the Court of Appeal given per incuriam, [through the want of care], need not be followed.”13 The ruling of per incuriam, that is a previous error noted and corrected, only applies to the Court of Appeals itself. It is still bound by the House of Lords. Before closing it should be noted that these examples of precedent apply both to criminal and civil procedure. There is not differentiation between them as far as precedent and binding is concerned. To summarise the points of law regarding precedent and the binding of courts, the distinction must be made between ratio decidendi and obiter dicta. Only the former binds a lower court with a higher courts decision. The latter is seen a persuasive measure which could be considered by the court, but it is not bound by this. Finally when a jurist sets out the case before him it is done with the knowledge that one of three things will occur: The decision will “reaffirm an established principle; or it may apply a principle to new facts; or it may lay down a new rule of law.”14 Also much care must be given in each finding because the precedent that may or may not be set can have a lasting affect on cases for years to come. The modern jurist as evidenced through the precedent setting cases discussed above are shown to adhere to the Realistic Theory in that they understand and acknowledge that precedent established and ruling overturned are in truth changing the law. However, due consideration is given to the by each jurist as to the impact their precedent may have in within the larger context of common law and how establishing a new precedent or overturning an old one, for that matter, would fundamentally change the law. In C. v. Director of Public Prosecutions [1995] 2 All E.R. 43 in 1995 Lord Lowry made several points regarding what has come to some as being considered ‘judicial law making’ when establishing precedent. The imposition of a remedy should be cautious where the solution is doubtful. If Parliament has rejected opportunities to rectify the situation, the courts should be cautious about doing so. Disputed social policy matters are less suitable for judges than purely legal problems. Fundamental doctrines should not be casually tossed aside Changes of the law should only be undertaken where certainty and finality is possible. In conclusion, although Lord Jessel’s position appears on the surface to be just and valid and in the most altruistic of conditions it appears the right moral and just action is to change or overlook precedent based on our view of morality or what it right. However noble the intention, the potential ramifications are severe. The benefit of living in a civilised society is having a structured judiciary system in place that ensures, as best as any human can, what is fair and just. To arbitrarily set aside past precedent is not something to be taken lightly as it has been reserved for the highest courts and that is where it should remain. References Dicey, A. V., (1959) Introduction to the Study of the Law of the Constitution, 10th Edn. [online] Law of the Constitution Website. Available from http://www.constitution.org/cmt/avd/law_con.htm [Accessed 4 Feb. 2006] Employment (14 Feb. 2003) [online] Jersey Legal Information Board Website. Available from http://www.jerseylegalinfo.je/Judgments/JerseyLawReports/display.aspx?cases/JLR1987/JLR87N011a.htm [Accessed 20 Feb. 2006] Judicial Precedent (Undated) [online] Lawnet Website. Available from http://members.lycos.co.uk/lawnet/PRECED.HTM [Accessed 20 Feb. 2006] Lawbook Contents. (2006) [online] Northampton:University of Northampton Distance Education Website. Available from http://nli.northampton.ac.uk/mmb/lawacc/tcb/LAWBOOK.htm#prec1 [Accessed 4 Feb. 2006] Sources of English Law (2003) [online] Wales: The College of Estate Management Website. Wales. Available from http://www.cem.ac.uk/bboard/studymat/p6024v2-0.htm [Accessed 3 Feb. 2006] Legal Citations Addie v Dumbreck [1929] AC 358. Adler v George [1964] Becke v Smith [1836] 2 M&W 195 Conway v Rimmer [1968] AC 910 C. v. Director of Public Prosecutions [1995] 2 All E.R. 43 Herrington v British Railways Board [1972] AC 877 Jacobs v LCC [1950] AC 361 London Street Tramways v LCC [1898] AC 375 Miliangos v George Frank (Textiles) Limited [1976] AC 443 Osborne v Rowlett [1880] 13 ChD 744 Qualcast (Wolverhampton) Ltd. v. Haynes [1959] A.C. 743 Smith v Hughes [1960] ALL ER 161 Whiteley v Chappell [1868] 4 LR QB 147 Young v Bristol Aeroplane Co Ltd [1944] KB 718 Statutes Occupiers’ Liability Act 1957 Occupiers Liability Act 1984 Official Secrets Act 1920 Poor Law Amendment Act 1851 Street Offences Act 1959 Read More