Dependence of the Doctrine of Precedent of the Courts - Case Study Example

Using case law, and considering any advantages and disadvantages, to what extent does the doctrine of precedent depend on the hierarchy of the courts? The concept of precedent was adopted by the early English Judges, who found it convenient. Judges followed the same reasoning as adopted by earlier judges in cases, where the facts were similar. However, this was possible, only where proper records of the case were maintained and provided to judges and lawyers. As such, early recording of cases were unreliable and incomplete. Subsequent to the development of the principle of precedence, the need for accurate, reliable and complete information, about previous cases was felt. Accordingly, in the year 1865, the Incorporated Council of Law Reporting was instituted, and it commenced to publish law reports. The publication of law reports was crucial to the development of the principle of Stare Decisis1. Subsequently, the Judicature Acts of 1873-5 and the Appellate Jurisdiction Act 1876 were enacted, which established a clear hierarchy in the court system. This system was the forerunner to the present structure of the courts. Under the present court system, civil cases are heard in the County Court or High Court, and appeals are heard in the Court of Appeal. A number of senior Lords Justices of Appeal in the Court of Appeal attend to such appellate cases. If the parties in such cases are dissatisfied with the Court of Appeal’s decision, they can make a further appeal in the House of Lords, where the Law Lords will dispose of such appeals. In this manner, as the case progresses in the judicial hierarchy, more authoritative judges hear the case. This hierarchy constitutes the basis for the system of precedent. A judge has to invariably follow the decision of a court higher than his court. In some case proceedings, the dealing courts have to adhere to the decisions taken previously by them2. In the hierarchy of the court system, decisions of the Court of Appeal are binding on the lower courts. This was established in Young v Bristol Aeroplane Co3. If there is evidence that the decisions were made per incuriam, then the Court of Appeal need not follow that decision in subsequent cases. The Court of Appeal (Criminal Division) is bound by the decisions of the House of Lords. It is also bound by its previous decision and the decisions given by the former Court of Criminal Appeal4. If the court erroneously, applies some provisions of the law, while taking decisions, the Criminal Division is not bound by such decisions and it can override them. This was demonstrated in R v Taylor, in which the law was misapplied and the Court of Appeal reconsidered its earlier decision5. The Court of Appeal held in R v Parole Board that the doctrine of precedent cannot be applied to cases, wherein the personal liberty of an individual gets affected by such rulings or there may be the possibility of causing injustice to that person6. The Divisional Courts have to follow the decisions of the House of Lords and the Court of Appeal. They are bound by them and Divisional Courts are also bound by the previous rulings made by them. It was established in a case that the criminal division was authorised to override its own previous rulings, if there had been a misapplication of the law, in that decision7. All the same, the High Court need not follow the decision taken by a single High Court judge. However, in practice, judges of the High Court follow the decisions made by other High Court judges, which ensures legal consistency. The magistrate county courts are not bound by their previous rulings. However, they have to follow the decisions of the High Court and other Appellate Courts8. In some situations, the Court of Appeal and the House of Lords arrive at the same decision, but due to different reasons. In such circumstances, considerable confusion is created. For instance, the decision in Hyam v DPP9, created such confusion in the law of murder. However, the ruling in R v Moloney got rid of this confusion10. In Hyam, it was ruled by the House of Lords that Mrs. Hyam was guilty of murder. This ruling was based on the facts of that case. However, the three judges who arrived at that decision had followed three different lines of reasoning, which led to legal uncertainty in the provisions of criminal law11. In Jacobs v LCC, it was held that if a judge based his decision on two or more reasons, then those reasons become justifications. However, Lord Denning, who was the Master of the Rolls, opined that if the judge bases his ruling on two or more reasons, then the Court of Appeal need not necessarily take those reasons for granted and is not bound by them12. There exists a general rule, which requires courts to be bound by the decisions taken in the higher courts that are above the dealing court, in the hierarchy. It also requires the dealing courts to follow their own previous rulings. However, this general rule is subject to certain exceptions13. The European Union’s law prevails over the domestic law of its Member States. Consequently, the national courts of the Member States have to follow the EC law in matters relating to the EU. The UK, as a Member State of the EU, has to adhere to the decisions taken by the European Court of Justice, if there is a clash between domestic and EC law. The national courts have to incorporate the case law of the ECJ into their legal system. It is important to note that the European Court of Justice does not follow the concept of precedence14. In the UK, all the lower courts must follow the rulings of the House of Lords, which are binding on them. In turn, the House of Lords has to follow its previous rulings. However, prior to the year 1898, the House of Lords enjoyed the power to override its previous decisions. This situation changed gradually and by the mid nineteenth century it was established that the House of Lords was bound by its previous rulings. This rule applied even if its earlier rulings proved to be erroneous or in need of change. The landmark case of London Street Tramways v London County Council established the rule that the House of Lords is bound by its earlier decisions15. The Law Lords held that there should be legal certainty in decisions even if the parties to the case were subjected to difficulties by the previous decisions. Accordingly, the House of Lords held themselves to be bound by their previous decisions, unless these decisions had been made in error or by ignoring statute16. While ruling in Knuller Publishing and Promotions Ltd v DPP17, the House of Lords refused to override their decision in Shaw v DPP. In the latter case, the House of Lords ruled that there was a concept in the common law, which was known as conspiracy to corrupt public morals. The House of Lords had not cited any precedents for that ruling. The existence of such a concept was not demonstrated by any other case till that time. This ruling enabled the judges of the Star Chamber to exercise their power to impose punishment for the offences that were in breach of morality18. The case of Kleinwort Ltd v Lincoln City Council clearly demonstrated the power and effect of rulings based on precedent. Earlier to this case, there was a ruling of the Court of Appeal, which held that money paid under a mistake of law could not be recovered by the parties who paid the money. This ruling was long – established and demonstrated the authority of the Court of Appeal. However, the House of Lords through its ruling in the Kleinwort Ltd v Lincoln City Council overruled this ruling by the Court of Appeal19. In Addie v Dumbreck, it was held by the House of Lords that occupiers of property were liable for the injuries caused to children who trespassed into that property. Such occupiers could be made liable for the negligence of a duty of care. Accordingly, such persons were required to take all possible measures to prevent trespassing children from being injured20. In Herrington, the Law Lords opined that since 1929 society had been transformed to a great extent and that there had been several social and physical changes. Thus their Lordships established the test of common humanity. According to this test, an inquiry could be conducted into the safety arrangements. an occupier had initiated to avert possible injuries to trespassers. These arrangements should be what a normal and reasonable person would take to prevent injury to a trespasser21. The case of Miliangos v George Frank demonstrated that the House of Lords is not necessarily bound by its previous decisions22. The House of Lords is empowered to overrule its previous decisions; and this was seen in R v Shivpuri23. In that case their Lordships had overruled their ruling in Anderton v Ryan24. Similarly, in R v Howe25, the House of Lords ruled differently from their previous ruling in DPP for Northern Ireland v Lynch26. Their Lordships departed from their previous ruling in the latter case and held that persons on a charge of murder cannot plead duress as a defence. In that case, the defendant Lynch who was suspected of being an accessory to a murder, pleaded that he had been subjected to duress, as a defence. However, the House of Lords decided in Howe that such leverage could lead to more crime. Their Lordships also considered the fact that crime, violence and terrorist activities had increased tremendously. On the basis of such reasoning, the House of Lords did not permit the defense of duress by Lynch27. The basic advantage of the doctrine of precedent is legal certainty and consistency in the rulings of the courts. Cases that have similar facts and invoke similar legal provisions must be decided alike. It also provides predictability of ruling, which is of great assistance to lawyers and parties to a case. In addition, the concept of precedent enhances efficiency. Decisions based on precedent enable the courts, lawyers and the clients to resolve their disputes in far lesser time. Thus it saves time and legal expenditure for all the actors involved in the case. It provides guidance to lawyers on the manner in which the case is going to be heard and the probable decision of the court.  Judges can exploit the provisions of common law on the basis of previous rulings and if there had been any irregularity in those previous decisions, they can recommend modifications to such principles of common law. This helps the development of law28. Nevertheless, the doctrine of precedence has its disadvantages. The foremost amongst these is an illogical distinguishing of cases. Moreover, the doctrine of precedence maintains strict rigidity and complexity in decisions. These factors at times compel judges to overlook some points in the case. It is contended by some that the doctrine of precedent promotes the creation of law. As such, the judges no longer decide cases by merely following previous decisions in similar cases29. According to Kofi Annan, the United Nations has been incompetent and ineffective in containing global terrorism. He stressed that its way of functioning has to be modified, in order to ensure world peace. Moreover, the internal functioning of the UN is also long overdue for change that will make it more effective and responsive to international terrorism. Kofi Annan squarely blamed the Bush administration for the present situation. This demonstrated his narrow – minded perception with regard to resolving the problem of terrorism. In reality, the US is the only country that fought against international terrorism. It had taken a proactive stance against terrorism and its proliferation. Kofi Annan had intentionally ignored this fact, and he and the Security Council drafted a limited number of alternatives to address international terrorism. Neither, the UN, the Security Council nor Kofi Annan had assessed American policies, which were aimed at curbing terrorism and terrorist activities around the world30. The High Level Panel had made certain criticisms against the UN for its proposed reforms. This High Level Panel’s report has recommended some reforms to fulfil the concerns of the third world countries. These nations are more concerned about the cross – border terrorism and the national integrity of their own territories. Some of the major concerns include the indebtedness of developing nations; reduced human resources in those nations; the stricter requirements put forward by international banks to provide loans to them; sanctions and trade barriers; military interventions; proliferation of nuclear and mass destruction weapons; and stationing of weapons in outer space31. List of References 1. Addie v Dumbreck (1929) AC 358 2. Anderton v Ryan (1985) AC 560 3. Mothersole, Brenda and Ridley, Ann. (1999). A – Level Law in Action. Cengage Learning EMEA. 4. DPP for Northern Ireland v Lynch (1975) 1 All ER 913 5. English Legal System. Available from [02 September 2008] 6. Glass, Garrett. Sep 16, 2003. North America: Kofi Annan urges UN reform. Available from [05 September 2008] 7. Austin, Greg and Berry, Ken. March 31, 2005. Kofi Annan and the Need for Real UN Reform. Available from [05 September 2008] 8. Blanke, Hermann-josef and Mangiameli, Stelio. (2006). Governing Europe Under a Constitution: The Hard Road from the European Treaties to a European Constitutional Treaty. Birkhäuser. 9. Herrington v British Railways Board (1972) AC 877 10. Hyam v DPP (1975) AC 55: 90 11. Jacobs v LCC (1950) AC 361 12. Kleinwort Ltd v Lincoln City Council (1999) AC 349; (1998) 4 All ER 513 13. Knuller (Publishing, Printing and Promotions) Ltd v DPP (1973) AC 435 14. London Street Tramways v London County Council (1898) AC 375 15. Miliangos v George Frank Textiles Ltd (1975) 3 All ER 801 16. Wesley – Smith, Peter. The Sources of Hong Kong Law. 1994. Hong Kong University Press. 17. Police Authority for Huddersfield v Watson (1947) KB 842 18. Precedent. (2006). In Collins Dictionary of Law. Available from [September 01, 2008] 19. Precedent (2001). In Encyclopaedia of Ethics. Available from [September 01, 2008] 20. R v Moloney (1985) AC 905 21. R v Shivpuri (1987) AC 1 22. R v Howe (1987) 1 AC 417 23. R v Taylor (1950) 2 KB 368 24. R v Parole Board, Ex p Wilson (1992) QB 740 25. Shaw v DPP (1962) AC 220 26. Stare decisis. (2006). In Collins Dictionary of Law. Available from [ September 01, 2008] 27. Young v Bristol Aeroplane Co Ltd (1944) KB 718 CA Read More