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The judicial practice of precedent1 Precedent as a judicial practiceTo describe precedent as a practice is to draw attention to the way in which judges interpret the law and act on the basis of those interpretations. Practices take shape within a culture that determines how they are composed. In this chapter we will thus direct our attention to the institutional context of judicial interpretation.
This will take us towards an understanding of the hierarchy of courts. Court hierarchy needs to be seen as a factor that has influenced and determined the forms of the judicial practice. As Danny Nicol says: ‘Underlying precedent is an emphasis on stability, permanence and the wisdom of the past – the common law being conceived as an accumulation of such wisdom – combined with reverence for the higher courts as the ‘elders and betters’ of the lower courts.
Precedent reflected the vision of law as an undertaking based on learning, acquired skills and experience. At the same time, since precedents exist in order to be applied, the system essentially empowered the higher courts to legislate. Presented as a restraint, precedent camouflaged law-making whilst in reality constituting law-making.’ Danny Nicol, Public Law 2006, Law and Politics after the Human Rights Act However, practices are never unitary. They are animated by tensions that reflect disagreements over the precise way in which the practice should be performed.
A consensus shared between practitioners over the techniques and performances that constitute a practice reflects the stability of the practice as a whole. We will see that judicial interpretation is a relatively stable practice. However, there have been important disputes over its precise operation and in some important areas, notably human rights, debates are ongoing. Note that a thorough study of the judicial practice of precedent would analyse the interpretative techniques that determine the statements of ratio and obita dicta. It would also have to concern itself with the techniques of over-ruling, distinguishing and following previous decisions.
The most thorough account of judicial practice would then have to go on to study the education and training of judges, and their embedding within a particular culture or cultures of legal behaviour. What are the consequences of this argument? If practices are essentially ways of acting in given circumstances, any general theory may be too distant from the practice to capture how judges actually interpret cases. Judicial interpretation is always a matter of a specific case and a singular set of facts.
To understand why a judge in a particular case comes to a particular conclusion necessitates a study of a precise legal context. In other words, a general account of precedent perhaps tells us more about the practice of academic writing than it does about the work of judges. It may be that the best way to understand the practice of judicial interpretation is to abandon any general account, and to see how it proceeds in different doctrinal areas of law. This would indicate that the best way to understand the practice of precedent is to study cases within their specific contexts†.
Precedence and judicial creativity
However, given that we need a general account of precedent, we can suggest some overarching concerns that structure judicial practice. The historical beginnings of the present doctrine of precedent obscure the extent to which judicial practice is creative. Judges make law, as Lord Browne-Wilkinson said in Kleinwort Benson v Lincoln City Council  4 All ER 513: ‘The theoretical position has been that judges do not make or change the law: they discover and declare the law which is thought the same.
According to this theory, when an earlier decision is overruled the law is not changed; its true nature is disclosed, having existed in that form all along…In truth judges make and change the law. The whole of the common law is judge made and only by judicial changes in the law is the common law kept relevant in a changing world.’. It was necessary to deny this fact in order to stress stability and certainty as the primary values of the doctrine of interpretation. This was inexorably linked to the hierarchy of courts. Stability and regularity in decision-making required each court to respect its place in the hierarchy that stretched from trial courts, through to the ultimate tribunal, the House of
English legal education does not contain a formal training in precedent. The study of precedent is restricted (for the most part) to an element of a first year introductory course of the LLB (and is absent from the CPE). To understand the law is to read cases, and to engage in practical arguments about them. Likewise, professional training does not consist of training courses on the interpretation of cases.
On the whole this reflects the empirical and practical culture of the common law- and the fact that until relatively recently, legal training was more akin to an apprenticeship than a course of university study. The law in general, and precedent in particular, are thus essentially ways of ‘doing’ law that have never seen the usefulness of general or abstract accounts of their operation.
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Study Pack Lords. Deviations could not be tolerated. There was also a constitutional argument. Judges could not trespass on the province of Parliamentary legislation, as constitutional doctrines stressed the legal and political sovereignty of Parliament. This position proved to be untenable, in part because it went against the older doctrine of judicial competence over the common law. It also proved a difficult line to hold, because the need to do justice could not so easily be removed from judicial practice in the name of unqualified procedural regularity. The demands of justice disturbed both the settled hierarchy and the sense of constitutional boundaries.
Cases presented compelling arguments for departure from the hierarchy of courts, and even for urgent changes in the law to be made by the courts themselves. A central tension emerged between hierarchy and flexibility in judicial practice. This can be understood as an issue of institutional legitimacy. Judicial creativity raises the question of institutional legitimacy, because it puts at stake the legitimacy of judicial law making. This, of course, raises the question of the relationship of parliamentary and judicial legislation.
The present constitution affirms the priority of the former over the latter. However, given that judges do make law, the real question is the extent to which this is legitimate – ‘just’ or acceptable within current understandings of constitutional propriety. Judicial practice has responded to issues of institutional legitimacy by providing guidelines that define and regularize the practice, although a definitive articulation of the relationship of the courts and Parliament has been avoided. We will see that this debate now proceeds increasingly in human rights terms. It cannot be understood in the terms of the conventional practice of precedent. Indeed, disagreements reflect the transitional nature of the practice itself, although it would be too soon to say whether or not we are witnessing a fundamental shift in judicial practice.
Our study of precedent will begin with an overview of the tension between hierarchy and flexibility that underlies the broad issues of institutional legitimacy. We will then look specifically at the relationship between the House of Lords and the Court of Appeal, and the possible development of an alternative practice of judicial interpretation. The final sections will engage specifically with the judicial law making and human rights. The chapter will conclude with some final reflections on substantive justice and procedural legitimacy.
Hierarchy and flexibility
The practice of precedent works within the context of the court structure. Indeed, the hierarchy of the courts provides the fundamental institutional structure. This can be seen as having three distinct elements: ‘These are the respect paid to a single decision of a superior court, the fact that a decision of such a court is a persuasive precedent even as far as the courts above that from which it emanates are concerned, and the fact that a single decision is always a binding precedent as regards courts below that from which it emanated.’ Cross and Harris, Precedent in English Law, (Clarendon: Oxford, 1991), 3. The hierarchy of the courts is based on the ‘respect’ given to the decisions of superior courts. The ‘binding’ nature of precedent applies to the inferior courts.
However, as the persuasive nature of an inferior court on a superior court has not been a particularly contentious issue, we will not consider it in this chapter. However, note that these distinctive features of precedent are introduced as being an accurate description ‘[a]t present’ (5). This is somewhat peculiar. It suggests that the doctrine itself is developing and changing over time. Any global definition has to be sensitive to this particular problem; a problem that corresponds with the idea that precedent is a practice, and that practices themselves develop.
The doctrine asserts that decisions of the House of Lords bind all the courts below it in the hierarchy (this could be linked to the dominance of the declaratory theory of common law interpretation). London Tramways v London City Council (1898) was central to the foundation of what was to become the conventional form of the doctrine. In London Tramways,
The House of Lords decided that it was bound by its own previous decisions: ‘Of course, I do not deny that cases of individual hardship may arise, and there may be a current of opinion in the profession that such and such a judgment was erroneous; but what is that occasional interference with what is perhaps abstract justice, as compared with the inconvenience…of having each question subject to being rearguarded and the dealings of mankind rendered doubtful by reason of different decisions, so that in truth there is no final court of appeal. My Lords, ‘interest rei publicae’ is that there should be ‘finis
University of London External System litium’ sometime and there can be no finis litium if it were possible to suggest in each case that it might be rearguarded because it is ‘not an ordinary case’ whatever than may mean.’ (London Tramways v London City Council  AC 375). Lord Halsbury acknowledges that cases of individual hardship may result from the House of Lords being bound by its own decisions. However, the need for clear general principles over-rides the hardship caused in individual instances.
Does the need for general principles also over-ride the requirement that the court make just judgments? Lord Halsbury rules that justice is of little consequence in comparison with the need for finality in litigation. His argument denies that there could be such a thing as an extraordinary case where justice may demand a departure from general principles. London Tramways is an important case because it lays down the parameters of the practice. The preference is for a clear, unambiguous statement of the binding nature of precedent. Very little allowance is made for a departure from the hierarchical ordering of the courts (Rookes v Barnard  AC 1129).
The next significant moment in the development of contemporary judicial practice is the Practice Statement of 1966. The Practice Statement created principles that stress the need for the flexible development of the law: ‘Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for the development of legal rules’ (Practice Statement (Judicial Precedent) 1 WLR 1234, at 1234). What does this tell us about the re-shaping of the practice?
Precedent is now described as fulfilling a dual function: it has a doctrinal aspect – the development of legal rules, and a social function as well. But note how this argument is different from that of Lord Halsbury: ‘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’ (ibid, 1234). The Practice Statement has reclaimed the concern for the individual case. It asserts that there is no point having general rules, if these lead to injustice in individual instances. What is to be done?
Their Lordships resolve to ‘modify’ the way they approach precedent: they will consider that they are normally bound by their previous decisions, but, in certain cases they will depart from previous decisions when ‘it is right to do so’. (Later in this chapter, we will see that this claim coordinates with one about the need to do justice in individual cases.) How are we to know when the time is right? Their Lordships will consider: ‘the danger of disturbing the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.’ (ibid, 1234)
This gives some general guidelines as to how the judges will understand the institutional legitimacy of their practice. The law would be illegitimate if it simply asserted the need for general rules, and ignored the fact that justice required general rules to be changed. However, the law would also become illegitimate if it simply treated each case as exceptional and failed to develop general rules. Law fulfils a social function: there is a social interest in settled general principles of law.
If there is an implicit acknowledgement of judicial law making in the Practice Statement, there is also an understanding that the power should be used sparingly and that stability would ultimately be preferred to creativity. In the years after 1966, it indeed became clear that departing from precedent decisions would only take place in very rare circumstances†. We can develop this point by examining some important decisions. In Miliangos v George Frank  3 WLR 758, the House of Lords departed from a previous decision, arguing that changing the law would enable the courts to ‘keep step with commercial needs’ and, furthermore, would not lead to ‘practical and procedural difficulties.’
The following passage from Lord Wilberforce’s judgment is worth considering in detail: ‘The law on this topic is judge-made: it has been built up over the years from case to case. It is entirely within this House’s duty, in the course of administering justice, to give the law a new direction in a particular case where, on principle and in reason, it appears right to do so. I cannot accept the suggestion that because a rule is long established only legislation can change it – that may be so when the rule is so deeply entrenched that it has †
Some indications are given in Jones v Secretary of State for Social Services  1 AC 944. It is insufficient that the case was wrongly decided. Lord Reid refused to give precise criteria – arguing only that experience would prove to be a guide for discretion. He indicated that it would involve ‘broad issues’- of both justice and legal principle – and that in the instant case neither of these criteria were present. Lord Wilberforce argued on slightly different grounds that if an interpretation of a statute had been given, then, unless Parliament was to change that statute, the interpretation was to stand. Lord Pearson’s argument stressed the idea of ‘finality of decision’ supported by arguments with which we are already familiar. Of all the judgments, Lord Simon’s is perhaps the most interesting, because he provides a list of reasons for not departing from the earlier case. Alongside reasons with which we are already familiar, he added a consideration of the nature of the parties and the litigation in issue – it was a revenue case with frequent litigants.
Common law reasoning and institutions Study Pack infected the whole legal system, or the choice of a new rule involves more far-reaching research than courts can carry out…Indeed, from some experience in the matter, I am led to doubt whether legislative reform, at least prompt and comprehensive reform, in this field of foreign currency obligation, is practicable.
Questions as to the recovery of debts or of damages depend so much upon individual mixtures of facts and merits as to make them more suitable for progressive solutions in the courts. I think that we have an opportunity to reach such a solution here. I would accordingly depart from the Havana Railways case and dismiss this appeal.’ (Ibid, at 470) Lord Wilberforce argues that because the law in this area is judge-made, it is legitimate to alter it provided that ‘on principle and in reason, it appears right to do so’.
The sterling principle for the award of damages had become anachronistic. The law of damages has to keep pace with modern developments. There is thus a strong argument for change. However, it is also important to note that the rule can be changed without upsetting other deepseated principles. Miliangos thus refers to a set of rules that may be of ancient providence, but, because they are in an area of judge made law, it would not be necessary to defer to Parliament. The particular mixture of ‘facts and merits’ makes this pre-eminently an area for judicial law making.
A close reading of the relevant cases might suggest the presence, or variation, of some of Lord Wilberforce’s concerns in Jones. Lying behind Herrington v British Railways Board  AC 877 are arguments about social change. It is no longer acceptable that a property owner should have limited responsibilities to trespassers, and the law must be amended accordingly. However, in Knuller v DPP  AC 435, the House of Lords refused to over-rule Shaw v DPP  AC 220.
Does this suggest that there are slightly different considerations in criminal law? In Shaw, the court made the claim that it had a jurisdiction to try offences against good morals, even though Parliament had not legislated to cover such behaviour, or the existing law was either ambiguous or silent. In Knuller, the court refused to over-rule the earlier case, even though it was wrong.
Does this suggest that their Lordships are willing to go much further in the area of social control, than they are in commercial law or tort? Miliangos suggests that there are certain factors that legitimise judicial law making in civil law. Are there similar considerations in criminal law? Given limitations of space, we will look in detail at two important cases: Shivpuri and Howe. In R v Shivpuri  2 WLR 988., the House of Lords over-ruled itself.
The case concerned the construction of S. 1 of the Criminal Attempts Act 1981. In an earlier case, Anderton v Ryan  AC 560,† the House of Lords had argued that the section could be approached on the basis of a distinction between acts that were ‘objectively innocent’, and those that were not so considered. However, in Shivpuri, they were of the opinion that Anderton had been wrongly decided. Lord Bridge’s judgment in Shivpuri is worth looking at in detail, in particular his criticisms of the notion of objective innocence.
He argues that the concept is ‘incapable of sensible application’ in criminal law. This is very emphatic language. The concept of objective innocence makes little sense because it avoids the central concept of the actor’s intention. This is the essential ingredient in the law of attempt. Thus, if a person attempts to buy drugs, but is sold a harmless substitute, the criminal law must approach the attempted offence from the viewpoint of the actor’s criminal intention. It would be wrong to argue that ‘objectively’ the act is innocent because the drugs did not exist.
Acts cannot be considered ‘independently’ of the state of mind of the actor†. Lord Bridge also stressed his own ‘conviction’ as a ‘party to the decision’ that Anderton was ‘wrong’ (ibid, 22). If Anderton was so clearly flawed, what course of action was open to the House of Lords? It was not possible to distinguish Anderton from Shivpuri. If their Lordships were bound by the unworkable test, the law of attempt would be based on flawed concepts.
The only alternative would be to invoke the Practice Statement. Was this a justifiable course of action? Departing from a precedent case would lead to uncertainty in the law. However, in Shivpuri this was justifiable. As Anderton was a recent decision, settled law had not yet developed. However, this is not the determining factor. The most pressing factor is the need to correct a ‘serious error’, ‘a distor(tion)’ in the law. It might appear, then, that any understanding of the interpretation of Shivpuri is rooted in the context of the criminal law, and the serious error in which the House of Lords had fallen into in Anderton. Can we observe a similar pattern if we turn our attention to a R v Howe?
The section provided that a person is guilty of an offence if s/he does an act which is ‘more than merely preparatory’. 1(2) goes on to state that even if ‘the facts are such that the commission of the offence is impossible’, a person may still be found guilty of an attempt to commit an offence.
Ibid., at 22. An alternative ground to justify the decision in Anderton was to analyse attempts in terms of the actor’s ‘dominant intention.’ However, this test also runs into difficulties, because it is very difficult to distinguish between dominant intention and incidental beliefs; there are also problems in devising any way of articulating a meaningful test that would be helpful to a jury.
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In Lynch (DPP for Northern Ireland v Lynch  2 WLR 641), the House of Lords had held that the defence of duress was available to someone who had been charged with aiding or abetting murder†. In R v Howe  2 WLR 417, the House of Lords over-ruled this decision. As with Shivpuri, we encounter very strong language. Lord Bridge asserted ‘I can find nothing whatever to be said for leaving the law as it presently stands’ (ibid. 12).
He went on to argue that an ‘odd quirk of the system’ had allowed the decision in Lynch to stand, despite the fact that four out of the seven presiding law lords (in the appellate courts in Northern Ireland and England) had rejected the reasoning in the case (ibid. at 436).
Lord Hailsham argued that R v Howe afforded an ideal opportunity to re-consider the issue from the standpoint of ‘authority’ (ibid., at 427). A review of the law of homicide stretching back to Hale and Blackstone showed that duress had never been available for murder. It was possible to invoke the Practice Statement because Lynch could not ‘be justified on authority.’ Furthermore, ‘judicial legislation [had] proved to be an excessive and perhaps improvident use of the undoubted power of the courts to create new law by creating precedents in individual cases.’
The improvident use of judicial legislation in Lynch was also indicated by Parliament’s refusal to legislate on the issue. Lord Bridge pointed out that Parliament had not acted on the Report of the Law Commission’s recommendation to allow a defence of duress (ibid. at 437). Parliament’s refusal to legislate suggests that the judges should not have taken upon themselves the reform of the law.
Lynch was fundamentally wrong in principle. Lord Hailsham justified this criticism by referring to ‘the overriding objects of the criminal law’ to set ‘standards of conduct’ that are clear in specifying how people are to ‘avoid criminal responsibility’ (ibid.). This means that the duress defence must not blur the offence of murder. The law must be based on the principle that it is never justifiable to commit murder, even to save one’s own life.
Does this mean, though, that as other offences allow a duress defence, the criminal law is inconsistent? This criticism is met with an argument from principle: ‘[c]onsistency and logic ….are not always prime characteristics of a penal code based like the common law on custom and precedent’ (ibid, 423). Indeed, if law is an art, rather than ‘an exact science’, a pragmatic response to problems is more important than a consistent development of abstract principles (ibid. 434). What, then, can Howe and Shivpuri tell us about the practice of precedent within criminal law? The law lords in both cases approach the law from the perspective that there have to be very compelling arguments for change.
The House of Lords will over-rule itself when it has fallen into serious error, and when the circumstances of the case are such that it is practical to over-rule an earlier decision. These narrow guidelines preserve the legitimacy of judicial law making. The House of Lords is ensuring the consistent development of principles. Criminal law is legitimised as the courts dispel the errors into which they have fallen. It is not necessary to depart from the hierarchical organisation of the courts to achieve this end. However, in turning to the question of the Court of Appeal’s jurisdiction, we now have to grapple with this very problem. How does this raise the problem of institutional legitimacy in a slightly different context?
Per Lord Bridge: in the law established by Lynch and Abbott, duress is acomplete defence to a murderer otherwise guilty as a principal in the second degree; it is no defence to a murderer guilty as a principal in the first degree.
The House of Lords and the Court of Appeal: precedent and justice Perhaps one of the most fraught questions in the area of precedent relates to the right of the Court of Appeal to depart from a judgment of the House of Lords. This is linked to the question of whether the Court of Appeal was bound to follow its own decisions. Tensions between the Court of Appeal and the House of Lords had developed in Schorsch Meier.
The Court of Appeal had argued that circumstances had changed so much since the House of Lords ruling in Havana Railways (in Re United Railways Of Havana  AC 1007) that ‘the sterling judgment rule’ principle should no longer apply. Denning MR stated that the underlying reason for damages being given in sterling was essentially ‘practical’.† He went on to invoke the principle cessante ratione legis cessat ipsa lex (Schorsch Meier v Henin  QB 416., at 425.) or – as he pithily put it: ‘[s]eeing that the reasons no longer exist, we are at liberty to discard the rule itself.’
Lord Denning justified this principle by arguing that it would be wrong to abrogate substantive rights by reference to procedural concerns. However, it would appear that there are at least two factors that justify the use of the principle. In a prior case, Jugoslavenska Oceanska Plovidba v Castle Investment Co. Inc.  QB 292, the court had allowed arbitrators to make awards in foreign currency. Denning MR also
It was outside the competence of the court to determine the value of a currency other than sterling; besides, it was ‘appropriate to trading conditions’ in a time before instantaneous communications (ibid).
Common law reasoning and institutions Study Pack made reference to this principle in the Court of Appeal’s hearing of Miliangos. Furthermore, in Schorsch Meier v Henin, Denning pointed out (and Lawton LJ agreed) that Article 106 of the Treaty of Rome required that judgment should be given in the currency of the member state in which the creditor resided.
This suggests the development of an alternative practice of interpretation that departs from the conventional understanding of the doctrine of the hierarchy of the courts. See also Broome v Cassell  AC 1027. The Court of Appeal had attempted to show that the House of Lords had acted per incuriam, or incorrectly, in the case Rookes v Barnard  AC 1129. The case concerned the issue of damages.
Lord Hailsham articulated the conventional position clearly: ‘In the hierarchical system of courts which exist in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers.’ Lord Hai