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Judges and the law
Judges and the law

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3.3.5 The High Court

The High Court is also bound by the decisions of superior courts. Decisions by individual High Court judges are binding on courts inferior in the hierarchy, but such decisions are not binding on other High Court judges, although they are of strong persuasive authority and tend to be followed in practice. It is possible, however, for High Court judges to disagree and for them to reach different conclusions as to the law in a particular area. The question then becomes – how is a later High Court judge to select which precedent to follow? It is usually accepted, although it is not a rule of law, that where the later decision has actually considered the previous one and has given a reason for not following it, then that is the judgment which later High Court judges should follow.

Conflicting decisions at the level of the High Court can, of course, be authoritatively decided by reference upwards to the Court of Appeal and then, if necessary, to the House of Lords, but when the cost of such appeals is borne in mind, it is apparent why, even on economic grounds alone, it is important for High Court judges not to treat their discretion as a licence to destabilise the law in a given area.

In relation to conflicting judgments at the level of the Court of Appeal, the High Court judge is required to follow the later decision.

Crown Courts, County Courts and magistrates' courts cannot create precedent and their decisions can never amount to more than persuasive authority.

Box 3 Crown Courts, County Courts and magistrates' courts

The Crown Court tries more serious criminal cases, as well as hearing appeals from the magistrates' courts. Crown Courts sit in over 90 permanent centres throughout England and Wales, each centre being designated as first, second or third tier, reflecting the seriousness of the offences tried. County and district boundaries have no statutory significance in determining where a case should be heard. Most Crown Court cases are heard at the centre most convenient to the magistrates' court which committed the case for trial.

The County Court deals primarily with civil law, so it doesn't fight crime in the same way as the criminal courts in England and Wales. Despite their name, the County Courts do not fit within county boundaries in England and Wales and in fact the 230 County Courts are scattered around the towns and cities that require their services. All property cases up to £30,000, all personal injury claims less than £50,000, and bankruptcy matters are all carried out by the district judge at the County Court.

Approximately 96 per cent of criminal cases are dealt with at a magistrates’ court. The case may be tried either by at least two, but usually three, lay magistrates, or by a district judge who sits alone. Until August 2000 these district judges were known as stipendiary magistrates, but were renamed in order to recognise them as members of the professional judiciary, as they are legally qualified and salaried.

Activity 9 asks you to use your knowledge from Reading 2, what you have studied in this course so far and your own everyday experiences to summarise the principal advantages and disadvantages of the doctrine of precedent. You may find some of the language of the Reading a little difficult, but don't worry. It is not necessary for you to understand all that is being said, you simply have to identify and summarise the main good and bad points of the doctrine of precedent.

Activity 9 The advantages and disadvantages of the doctrine of precedent

Timing: 0 hours 45 minutes

Please read Reading 2: ‘English legal system in context’ and answer the following question: What do you consider to be the advantages and disadvantages of the doctrine of precedent?

Now click here [Tip: hold Ctrl and click a link to open it in a new tab. (Hide tip)] to read the document Reading 1 (PDF, 0.1mb, 2 pages).


Did you consider the following advantages and disadvantages?


Consistency and fairness in the law – This refers to the fact that cases are decided on a like-for-like basis and are not subject to the whim of the individual judge deciding the case in question. This aspect of formal justice is important in justifying the decisions taken in particular cases.

Certainty – Lawyers and their clients are able to predict what the outcome of a particular legal question is likely to be in the light of previous judicial decisions. Also, once the legal rule has been established in one case, individuals can orient their behaviour with regard to that rule relatively secure in the knowledge that it will not be changed by some later court.

Efficiency – This refers to the fact that it saves the time of the judiciary, lawyers and their clients if cases do not have to be re-argued. For potential litigants, it saves them money in court expenses because they can apply to their solicitor/barrister for guidance as to how their particular case is likely to be decided in the light of previous cases on the same or similar points.

Flexibility – This refers to the various mechanisms, by means of which the judges can manipulate the common law and thus allow the development of the law in particular areas without waiting for Parliament to enact legislation.


Uncertainty – This refers to the fact that the degree of certainty presented by the doctrine of stare decisis is undermined by the huge number of cases that have been reported and can be cited as authorities. With so many rules and slightly different interpretations of them in thousands of cases, it is not always easy to see which interpretation a court will give the law in your case. This uncertainty is increased by the ability of the judiciary to select which authority to follow through use of the mechanism of distinguishing cases on their facts.

You will see some examples of the uncertainty which can be generated by case law when you attempt Activity 10.

Fixity – This refers to the possibility that the law in relation to any particular area may become inflexible on the basis of an unjust precedent, with the consequence that previous injustices are perpetuated. An example of this is the long delay before the courts were willing to change the law and say that marital rape was a crime. Since the 1970s, arguments had been put to the courts on behalf of women raped by their husbands but the law was only amended by the House of Lords in 1992. We will examine this House of Lords judgment later in the course.

Unconstitutionality – This is a fundamental question that refers to the fact that the judiciary are overstepping their theoretical constitutional role by actually making law rather than restricting themselves to the role of simply applying it. If they are not elected as law-makers then why should they be allowed to make law?

You may have thought of some other disadvantages. The system of precedent can be slow. An area of law may be unclear or in need of reform but this cannot be done until the case is heard. The Court of Appeal has to follow its own previous decisions but only about 60 cases go to the House of Lords every year. This may result in a long wait for a suitable case to be appealed as far as the House of Lords. The system also encourages complexity. Even with online legal databases it is not easy to find all the relevant case law. The judgment in a case may be long with no clear distinction between comments, the ratio and obiter. We will go on to explain these terms more fully.

Figure 4
Figure 4: There are so many thousands of reported legal cases in the law library that operating the doctrine of precedent can be difficult.

Reading 3 is an article which highlights the uncertainty of the law in relation to the citizen's right to protect their own property. The article discusses the case of Tony Martin and other court judgments. You may recall the case of Tony Martin, the Norfolk farmer who shot and killed a trespasser on his property. As you are reading Reading 3 make a note of the inconsistent decisions which the courts have arrived at on this single issue of the right to protect property.

Activity 10 Castles built on law

Timing: 0 hours 10 minutes

Please read Reading 3: ‘Castles built on law’.

Now click here to read the document Reading 3 (PDF, 0.1mb, 2 pages).


Reading 3 provides a very good illustration of why certainty is an important feature of the legal system. The law in this area has become rather confused. In 1996, the Court of Appeal decided that a trespasser engaged in criminal activities can claim compensation for injuries suffered if the force used against him or her exceeds ‘reasonable limits’. Tony Martin was convicted of murdering a young man who had broken into his house after dark.

The court decision in the case of Tony Martin contrasts with other court decisions. As you will have read, between 1300 and 1348 there were frequent acquittals where householders had killed housebreakers. Reading 3 also refers to the Peterborough Crown Court case in which a burglar who was beaten with a baseball bat was said by a judge to have got what he deserved.

Whatever your opinion about which view is correct, I think you will agree that the law in this area is very uncertain and inconsistent.