P.21-39 J.Martin In what part of the syllabus does this topic fit?
Judge made law via the cases upon which they decide is one of the oldest sources of law. There are now at least 400,000 reported cases and some areas of law, such as the law of torts, are found mainly in cases.
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Describe The role of a judge:
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Definition of the doctrine of judicial precedent:
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What is a precedent?
At the end of a case the judge makes a judgement, which is made up of two things:
Annotate the triangle to represent the way in which the hierarchy of the courts works:
The House of Lords is binding on all courts below it and is bound by no other court (other than by the European Court of Justice on matters of European Community Law only).
The Court of Appeal is bound by the House of Lords but is binding on all courts below it. Below the Court of Appeal, only the Divisional Courts and the High Court create precedent. Inferior courts, ie............................................................ ...................................... and tribunals do not create precedent, but have to abide by the precedents set in higher courts.
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Binding Precedent:
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Persuasive Precedent: Different types of persuasive precedent:
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Should courts be able to go against what they have previously ruled or should they be bound by previous ratio?
Yes -
No -
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The House of Lords and the 1966 Practice Statement The House of Lords is bound by the rulings of the ____________ __________ of ___________on matters of European law. The HL used to regard itself as bound by its own previous decisions and rulings, but under the 1966 Practice Statement (a statement on behalf of the Lords) it can now depart from its previous decisions where it seems "right to do so".
The old rule, whereby the HL did bind itself, was set by London Tramways Co. v London County Council (1898). The reason was that it was felt that decisions of the highest appeal court should be final in the public interest, creating certainty and discouraging unnecessary litigation, despite the possibility of individual hardship. Explain what is meant by litigation: Over the years the practice was criticised as it created inflexibility. The 1966 Practice Statement said that too rigid an adherence to previous decisions could cause injustice and restrict the proper development of the law. English law would be able to adapt to new social and economic conditions. It brought the HL into line with other superior courts, eg. US Supreme Court. It also stated that particular care would be taken to preserve the need for certainty in criminal law. Why, do you think? At first, the HL was cautious in exercising its power to depart from its previous decisions, particularly in the realm of criminal law. Why? Examples of the Practice Statement being used by the House of Lords: Conway v Rimmer (1968): The first use of the Practice Statement in civil law was Herrington v BRB (1972) which overruled Addie v Dumbreck (1929) …….. In criminal law the first use of the Practice Statement was in R v Shivpuri (1987) which overruled Anderton v Ryan (1985) .......
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In Shivpuri Lord Bridge stated: " I am undeterred by the consideration that Anderton v Ryan (1985) was so recent. The Practice Statement is an effective abandonment of our pretension to infallibility." Explain. R v Howe (1987) overruled Lynch v DPP (1975): Pepper v Hart (1993):
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Cases which could be used to support the argument that the House of Lords is still not very happy/flexible in accepting its role as a law maker:
C v DPP (1995)
(age of criminal responsibility) 
Since this judgment from the House of Lords the Crime and Disorder Act 1998 has removed the concept of "mischievous discretion", ie. taking note of the Lords’ reasoning. (But is this only because of the politically sensitive nature of young offenders?)
R v Clegg (1995) (Self defence/murder)
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The Court of Appeal and avoiding past decisions Page 28 Both Divisions of the Court of Appeal are bound by the House of Lords and ECJ, despite attempts in the past, mainly by Lord ___________, to ignore the hierarchy. List the three cases in which he did that: * Court of Appeal |
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Civil Division Young v Bristol Aeroplane Co. (1944): * Criminal Division R v Gould (1968):
Nb: The Court of Appeal can be persuasive on the House of Lords, eg. R v R (1991). Should the Court of Appeal be allowed to go against its own previous decisions in any circumstances if that would do justice in the case before it? Yes: No:
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Ways in which to avoid awkward precedents
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Law Reporting See page 36 for an example of a law report of a family case A Law Report is: Examples of law reports: The Incorporated Council on Law Reporting was created in 1865 Criticisms of law reporting: Recent advances:
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Advantages
and Disadvantages
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The old view of precedent is that judges only declare what the law is and that judges do not create law. Blackstone, an exponent of the Declaratory Theory in the eighteenth century was of the opinion that judges only discover the law and are not concerned with the policy implications of their decisions.
The modern view of precedent accepts that judges do make law:
Original Precedents
This refers to the situation where a point of law has never before been discussed in a case, in which case the courts have to make law.
Donoghue v Stevenson (1932) HL:
Practice Statement, Young v Bristol Aeroplane etc. allow development of the law but are dependent upon the attitude of the judges.
Areas of law unaffected by statute
Creative distinguishing
Lord Denning, a maverick albeit very well-respected judge, believed very
strongly that judges should be able to develop the law:
"Someone must be trusted. Let it be the judges."
"The principles of law laid down by nineteenth century judges, however suited to social conditions at the time, are not suited to the social necessities and opinions of the twentieth century. They should be moulded and shaped to meet the needs and opinions of today."
This was criticised by many, including Lord Symonds for being a "naked usurpation of the legislative function.
Rowan Smith February 2001
