Primary hallmark of substantive law in English system is that so much of decision-making process is achieved by consistency through the application and development of case law and precedent. For example, the large volume of the law of tort and contract, equally important crimes as murder and common assault are a creation of the judicial precedent system and not of Parliament. Thus distinguish the English legal system from the codified systems of Europe and elsewhere1. The doctrine of judicial precedent is crucial in the understanding of the practice of law in English jurisprudence.
In this work I will consider the concept of the judicial precedent within hierarchies of decision-making process thus allows to see consistency in practice It also important to consider how precedent works, what freedom it offers to individual judges. The relevant advantages and disadvantages of the law of precedent need to be distinguished. In order to complete this assessment successfully, law reforms need to be discussed. “Good decision-making process” is a process that falls short of the high level of effectiveness and the one that is in the best interest of the community. The effectiveness depends on the level of consistency.
“Consistency” is defined in the Oxford dictionary as “the quality, state, or fact of being consistent; it is also agreement, harmony, compatibility”. It is the quality of always being the same. In order that the law was consistent a system developed by which a judge had to follow the legal principles laid down in a previous case with similar facts. This is called the doctrine of judicial precedent and is an important source of law. It is called ‘judicial precedent’ because it comes from judges or the ‘judiciary’. The main rule of judicial precedent is stare decisis, this means ‘stand by the decision’ or ‘treat like cases alike’.
Once a decision is made on a point of law it is fair to keep to that decision in later cases dealing with the same legal principles. Stare decisis concerns the impact of the future on others in the community and especially on later courts. The system of judicial precedent seems to be a good system and consistency provides this. Individual judges need to fit into a tradition in which the tendency to make arbitrary decisions is controlled; the doctrine of precedent protect against the idea that judges make decisions at random The principle of stare decisis ask judges to follow the doctrinal rule.
This means that the result of the case brought forward by litigants can be reasonably predicted with some degree of certainty if a previous case with similar facts had a particular outcome. It allows litigants to make a reasoned and informed decision as to whether or not they want to proceed with their case. From another prospective, consistency is desirable because the public, the courts and the government expect that ‘like cases be treated alike’. It is difficult to find reasonable justification why identical cases should be considered at the same time with different outcome2.
In any legal system law has to be predictable and stable as people have faith in it. However, precedent would dissipate consistency, as there is a tendency to follow previous decisions reached in earlier court whether they are binding or not and whether or not the precedent is wise one. Professor Julius Stone expressed this tendency in outstanding form: ‘The doctrine of stare decesis, in addition to whatever it may enjoin upon the intellect, certainly evokes an atmosphere and a mood to abide by ancient decisions, to follow the old ways, and conform to existing precedents.
It suggests a condition of rest, even of stasis, a system of law whose contents is more or less settled, the past content by past decision, and the present and future content they too controlled by those past decisions. It implies the stability of the legal system along the stream of time, that despite all the vast social, economic and technological changes of the last eight or nine hundred years, society remains nevertheless in some meaningful sense under the governance of the same system of law’3.
It leads sometimes that bad decisions have been followed for many years notwithstanding the changes in the society and in time. On the other hand an undesirable precedent can be differentiated and therefore be avoid. The appeal system allows litigants to challenge any principle of law and thus, principles can be changed by a court high enough in hierarchical system. For the system to work effectively there need to be a clear court hierarchy because lower courts must follow the decisions of higher courts. Lawyers and judges also need reliable reports of previous cases to refer to.
Until the Judicature Acts 1873-75 set up the modern court system, and the Council of Law Reporting was created in 1865, precedent was not a strict source of law. The Council produced accurate reports of cases and judgements so lawyers can now refer to earlier cases and cite them to the judge in court to back up their arguments. These help precedent to work in practice. The Acts provided a hierarchy showing which courts are superior. The rule is that every court binds lower courts or courts equal to them. Thus allows seeing how precedent operates within hierarchical structure.
In England and Wales, the courts have a very rigid doctrine of judicial precedent, which has the effect that every court is bound to follow any decision made by a higher court and that appellate courts are bound by their own decisions. Decisions made in the European Court of Justice bind all other courts in matter of Community law since 1973, under s3 (1) of the European Communities Act 1972 and can overrule its own decisions. Under s. 2 of the Human Rights Act 1998, all courts must “take into account” the case law of the European Court of Human Rights, the Commission and the Committee of Ministers.
Thus shows that if a Conventional right has been breached consistency of judicial precedent would not apply. In Re Medicaments (2001) the Court of Appeal refused to follow a decision of the House of Lords in R v Gough (1996) because it was different to decisions of the ECHR. The House of Lords bind all lower courts, especially Court of Appeal, and, since 1966 when it issued a practise statement, can overrule past decisions. This is clearly seen in Directors for Northern Ireland v Lynch4 when the House of Lords said that duress could be a defence to a charge of murder, and in R v Howe5 they said it could not.
The declaration that the House of Lords was no longer bound by it’s own decision helps to strengthen the idea of precedent in English law, as before that decisions had to be followed even though they were unfair or outdated. The Court of Appeal has two divisions, which are both bound by the higher courts but not each other. Each single division is bound by its own previous decisions; however, both have the Young v Bristol Aeroplane exceptions. In Young v Bristol Aeroplane Co Ltd6, the Court of Appeal (civil division) held to be bound by its own previous decisions and also ruled to be a subject to three exceptions.
Firstly, where there are two conflicting decisions, the Court of Appeal must decide which to follow and which to reject. Secondly, where a decision of its own has been impliedly overruled by the House of Lords. Finally, the CA divisions are not bound where the previous decision was given per incuriam, which means ‘by carelessness or mistake’. In the criminal division, in addition to the Young exceptions, precedent is not followed as rigidly because a person’s liberty may be at stake.
In R v Taylor7 the Court of Appeal held that if ‘the law has either been misapplied or misunderstood’ then it must reconsider the earlier decision. Divisional Courts are bound by higher courts and bind lower courts except the Employment Appeal Tribunal. They are generally binding on themselves. Higher courts bind the High Court, but not themselves, and all courts bind Inferior Courts. 8 From the courts structure it is clearly seen that consistency is not ideal there as certain exceptions have to be applied and also courts have to take into consideration the Human Rights Act and European Court of Justice.