The doctrine of judicial precedent comes from the principle of stare decisis which means ‘stand by decisions already made’ and requires that like cases are treated alike. And in doing so provides consistency and continuity in the application of the law.
There are two types of precedent: binding precedent and persuasive precedent. Binding precedent is found in the ratio decidendi of the case, or the ‘reason for deciding’. This is a precedent from an earlier case, which generally must be followed even if the judge in the later case does not agree with the legal reasoning behind it. A binding precedent is created when the facts of a later case are sufficiently similar to an original case and if the decision was made by a court which is higher than, or in some cases the same level as, the court hearing the later case. The decision in Donoghue v Stevenson  AC 562 set the binding precedent that ‘a person will owe a duty of care not to injure those who could be reasonably seen to be affected by their acts or omissions’ and therefore had a profound effect on later cases. Persuasive precedent is not binding on the court, however a judge may consider such a precedent and decide that it is the correct principal to follow. In other words, he may be compelled to follow it. They can come from many sources including: obiter dicta (‘things said by the way’), lower courts, Privy Council decisions, and a dissenting judgement.
The general rule when it comes to the doctrine of precedent is that all courts are bound to follow decisions made by courts higher than they in the hierarchy and appellate courts are normally bound by their own previous decisions. As a result of the European Communities Act 1972, European Community (EC) Law now forms part of the law of the United Kingdom. Domestic legislation must now be interpreted in such a way as to comply with Community Law in as far as is possible. In addition, if an Act can not be interpreted in such a way as to be consistent with EC law, then the courts must look to EC law rather than domestic legislation. The European Court of Justice (ECJ) is the highest court with regard to domestic law and as it does not operate on the basis of stare decisis is not bound by its previous decisions. However further to s. 3 (1) ECA 1972, UK courts are only bound by the ECJ on matters of European law. The House of Lords (or Supreme Court of the United Kingdom as it has become) is the final appellate court in England and Wales and its decisions are binding on all courts below it in the hierarchy. Until 1966 it regarded itself as bound by its own previous decisions, this was established under the principle in London Tramways Co Ltd v London CC  AC 375. This meant that the law could not develop with the changing times and mistakes made could not be remedied. However in the Practice Statement  3 All ER 77, Lord Gardiner indicated that the House of Lords would in future be able to depart from its own previous decisions where it appeared appropriate to do so. This is not a discretion the House exercises lightly however and this power was not used until two years after the release of the Practice Statement in the case of Conway v Rimmer  AC 910 which reversed the decision made in Duncan v Cammell Laird & Co  AC 624. The next court in the hierarchical structure is the Court of Appeal. Both the Civil and Criminal divisions of the Court of Appeal are generally bound by the decisions of the House of Lords. The Court of Appeal is also generally bound by its own previous decisions. However Lord Greene MR in Young v Bristol Aeroplane Co Ltd  KB 718, CA noted a number of exceptions to this rule: (a) where its own previous decisions conflict, (b) where its previous decision had been overturned by the House of Lords and (c) where its previous decision were made per incuriam (‘through carelessness’). Whilst all of these conditions apply to both the Civil and Criminal Divisions the Court of Appeal has a wider discretion with regard to criminal cases in matters of civil liberty. Further down in the hierarchy the Divisional Courts are bound by their own decisions and those of the higher courts, although in civil cases they can rely on the exceptions noted in Young v Bristol Aeroplane Co Ltd. Regarding the High Court, decisions made by High Court judges are binding on lower courts but not on other High Court judges, however they are strongly persuasive and do tend to be followed in practice. Whilst subject to binding precedent from superior courts, the Crown Court is not bound by its own previous decisions, they simply amount to persuasive authority. And finally the decisions of County Courts and Magistrates Courts are never binding.
The protection of civil liberties and human rights is a key function of any legal system, providing an effective method of remedy when fundamental rights are violated. Further to the introduction of the Human Rights Act (HRA) 1988, the decisions of the European Court of Human Rights (ECtHR) now form part of the jurisprudence of the UK courts. This of course means that it is possible that the superior courts will be bound to alter previous precedents where they have been generated without reference to the European Convention on Human Rights (ECHR). The HRA 1988 therefore has the potential to profoundly effect the operation of the English legal system and as such the doctrine of precedent. Section 2 of the Act provides that courts ‘must take into account’ any previous decision of the ECHR. It therefore effectively allows a court to ignore a binding precedent if it feels that it was incompatible with the ECHR, so establishing a new principle of law compatible with the HRA. This is illustrated in the leading case of Ghaidan v Godin-Mendoza  EWCA Civ 1533, in which the Court of Appeal, in using the new powers available to them under s.2 HRA, effectively overruled the decision of the House of Lords in Fitzpatrick v Sterling  AC 227 which held that a homosexual partner could not be seen as a spouse for the purpose of the Rent Act 1977. However, in Kay v London Borough of Lambeth (2006) the House of Lords distinguished between decisions of the ECJ and those of the ECtHR. Decisions of the ECJ as we have seen are binding, whist those of the ECtHR are not. Lord Bingham stated:
“The mandatory duty imposed on domestic courts by s.2 of the 1998 Act is to take into account any judgement of the Strasbourg Court and any opinion of the Commission. Thus they are not strictly required to follow Strasbourg ruling, as they are bound by s 3 (1) of the European Communities Act 1972 and as they are bound by the rulings of superior courts in the domestic curial hierarchy”.
Consequently the House of Lords concluded that the traditional rules of precedent should apply and the lower courts should follow the House of Lords, even when their decision had been overturned by the ECtHR. However this does not apply where the previous authority had been set without reference to the HRA.
In conclusion, the HRA has provided the courts with new powers of interpretation and review. The ‘incorporation’ of the European Convention allows European Convention case law and principles to inform domestic law and for individuals to seek remedy more similar to the system applied in the ECtHR. However the HRA simply gives ‘further effect’ to the Convention and does not mean that the long established hierarchy of precedent within the English legal system has been destroyed. It simply serves to protect basic human rights and ensure that these are at the forefront of the UK legal system.
Table of Legislation
Human Rights Act 1998
European Communities Act 1972
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