Legal skills and debates in Scotland
Legal skills and debates in Scotland

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Legal skills and debates in Scotland

2.1  Precedent

Precedent forms the basis of the common law. This is one of the sources of law in Scotland. The judiciary may, on occasion, determine the meaning of a term in a piece of legislation and they also create law through precedent. There are areas of law, such as delict, where little legislation exists. When legislation does not exist, courts have to make a decision on the facts before them and look at previous decisions to determine the case. In this way they have developed an area of law known as common law.

There are two notions of precedent. Firstly is that it is dynamic, the rule in a previous case can be applied in subsequent similar cases. This allows the common law to evolve incrementally in order to cover newer factual situations and changing social circumstances and norms that have some resemblance to, or roots in, the first case. Secondly, is that it is a static mechanism to ensure certainty, so far as possible, in the law.

The static doctrine of binding precedent is known as the doctrine of stare decisis, which is Latin meaning ‘to stand by/adhere to decided cases’, i.e. to follow precedent. In other words, once a legal principle is decided in one case it should be followed in similar future cases. The doctrine of binding precedent refers to the fact that, within the hierarchical structure of the courts in Scotland, the decision of a higher court will be binding on a lower court. In general terms, this means that when judges try cases they will check to see if a similar situation has come before a court previously.

If a precedent from a similar situation exists and it was set by a court of equal or higher status to the court deciding the new case, then the judge in the present case should follow the legal principle established in the earlier case. Where the precedent is from a lower court in the hierarchy, the judge in the new case may not follow but will certainly consider it.

There are three essential elements to this system of precedent:

  • a court hierarchy
  • binding precedent
  • accurate law reporting.

You should now watch the following video which explores precedent.

Skip transcript: Exploring precedent

Transcript: Exploring precedent

[MUSIC PLAYING]
WOMAN
The case of Hunter against Hanley...
MAN
Session cases of 1923, page 105...
NARRATOR
When judges began recording their own decisions in the 16th century, they were producing the precursors of modern law reports.
WOMAN
...the unlimited sovereignty of Parliament is a distinctly English principle which has no counterpart...
NARRATOR
Whether they wrote their decisions down primarily for posterity or to aid the consistency of their decision making, we cannot be sure.
MAN
The appellant, who was a fishwife, was a passenger in a tramway car which was proceeding in the direction of Colinton...
NARRATOR
But as the hearing of cases became more formalised and law reporting more structured, a doctrine of precedent arose.
MAN
...which was given for something, but for which nothing was got in return.
ALISON STIRLING
What precedent means to me really is the idea that there are decisions of higher courts which will be binding on lower courts.
RUTH INNES
Precedent is a different sort of law to statute or legislation. Legislation is made by Parliament and interpreted by judges. Precedent is judge-made law.
KENNETH CAMPBELL
The court has to search for the principle underlying the area of law that's being applied. And precedent, in the sense of cases decided on a similar issue, either similar legal issues or similar factual issue, will help guide that decision.
LORD KINCLAVEN
And underlying most of Scots law, I think, is a desire to try and maintain the principle and to work out the principle behind what we're doing.
JAMES WOLFFE
It's a fundamental principle of justice that like cases should be decided alike, and different cases should be decided differently. And so what precedent gives us IS a store of the way previous cases have been decided.
[MUSIC PLAYING]
MAN
My Lord, turning now to the case of Donoghue against Stevenson - this was reported in the 1932 volume of session cases.
JAMES WOLFFE
Donoghue and Stevenson established a really important principle in the law of delict - as it's called in other jurisdictions, tort.
MAN
This case regarding the decomposed snail in the ginger beer bottle.
LADY DORRIAN
Donoghue and Stevenson provided really the foundation of the modern law of negligence.
JAMES WOLFFE
And because it was decided in the House of Lords, it established that principle not only for Scotland, but also for the rest of the United Kingdom, and indeed for the Commonwealth.
[MUSIC PLAYING]
NARRATOR
Donoghue against Stevenson was a majority decision of the House of Lords. The judges disagreed as to the outcome. Lord Buckmaster gave the main dissenting opinion for the minority. But for the majority, it was the opinion of Lord Atkin that has resonated subsequently with lawyers and judges alike and upon which the modern law of negligence is based.
[MUSIC PLAYING]
MAN
The liability for negligence, whether you style it such or treat it as in other systems as a species of culpa, is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any...
JULIUS KOMOROWSKI
It was a majority decision in the House of Lords. You'll see contrasting styles of how the different judges used previous decisions, how they used precedent.
MAN
The rule that you are to love your neighbour becomes in law, you must not injure your neighbour and the lawyers...
ALISON STIRLING
What Lord Atkin appears to have done is to have said, well, what is the principle underlining all these other cases in which recovery was allowed or not allowed? And that's when the neighbour principle was developed.
KENNETH CAMPBELL
Now, that principle, stated for the first time in that way by Lord Atkin, has been applied in numerous subsequent cases and is the foundation of the current law of delict and represented quite a significant departure from the approach which had applied up to then.
MAN
Who, then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.
KENNETH CAMPBELL
That's judicial writing of a very high order. And it's perhaps for that reason, also, that the cases come down. The principle is clearly stated, but it's elegantly stated, as well. Lord Buckmaster in Donoghue and Stevenson applies a more traditional approach to precedent.
JULIUS KOMOROWSKI
Lord Buckmaster sees decision favourable to Mrs. Donoghue. And he distinguishes it by saying, well, that seemed out of step with other decisions, and it's lived a very dangerous life. And its dubious holdings should just be put to bed now.
LORD EASSIE
And it was also combined with what one very often has whenever the challenge is to move onwards from the strict area of precedent - the floodgates argument. And you can see the floodgates argument weighing very much with Buckmaster.
KENNETH CAMPBELL
There has come to be a recognition as the law has developed that taking too rigid a view of precedent means that the law doesn't adapt to meet changing circumstances.
LORD EASSIE
One of the difficulties about precedent, which is if you apply it too strictly you can't develop the law. So there has to be some inbuilt flexibility.
NARRATOR
Sometimes, due to changes in society, the criminal law needs to develop and the precedent be overturned.
DOROTHY BAIN
In Scotland we have a common law system of law, and it's often described as a live system of law. And whilst you look at precedent, the court might determine that precedent shouldn't apply in a particular situation because there have been societal changes. And a really good example of that occurring is when the Court of Appeal in Scotland looked at the law of rape in the Lord Advocate's Reference (No 1 of 2001), when they changed the definition of rape in order to bring it up to date and take into account the change of women's position in Scottish society.
NARRATOR
Whichever court an advocate appears in, however, for precedent to be applied, a record of previous cases needs to exist.
JAMES WOLFFE
As an advocate, it's really important that one refers the court to the cases that matter. And what one looks for in a good set of law reports is that the editor has made the first cut.
WOMAN
Cases which develop the common law, cases which explain statutes, cases which resolve areas of doubt.
LORD KINCLAVEN
And that's really what law reporting is all about - to enable people to see ideas in action. They don't have to agree with them. They may try to distinguish them. They may decide that they're wrong but it's helpful to know that the ideas are right there and that people have the opportunity to read them if they choose.
[MUSIC PLAYING]
End transcript: Exploring precedent
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The UK Supreme Court is the highest court of appeal for civil matters in Scotland. It hears matters which involve points of law of general public importance and concentrates on cases of the greatest public and constitutional importance. Its decisions are binding on all courts lower in the court hierarchy. In concentrating on cases involving points of law which are of public importance and cases of the greatest public and constitutional importance the court makes decisions which help shape society. It is also the final arbiter on devolution issues.

Described image
Figure 6  The Highest Appeal Courts: Scotland

The High Court of Justiciary is Scotland's supreme criminal court. When sitting as an appeal court, the court consists of at least three judges when hearing appeals against conviction and two when hearing sentence appeals. More judges may sit when the court is dealing with exceptionally difficult cases or those where important matters of law may be considered.

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