Judges and the law
Judges and the law

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Judges and the law

3.3.6 Summary of the system of precedent

The basis of the system of precedent is the principle of stare decisis and this requires a later court to use the same reasoning as an earlier court where the two cases raise the same legal issues. For example:

  • House of Lords’ decisions are binding on all other courts in the legal system, except the House of Lords itself.

  • The Court of Appeal is bound by previous decisions of the House of Lords. The Court of Appeal generally is also bound by its own previous decisions, with the following exceptions:

    1. where there is a conflict between two previous decisions of the Court of Appeal;

    2. where a previous decision of the Court of Appeal has been overruled by the House of Lords;

    3. where the previous decision was taken in ignorance of some statutory or case law authority that would have led to a different conclusion;

    4. where the previous decision is inconsistent with European Community law or with a later decision of the European Court of Justice;

    5. Section 2 of the Human Rights Act 1998 requires all courts and tribunals to take into account any judgment, decision, declaration or advisory opinion of the European Court of Human Rights.

  • Divisional Courts must follow decisions of the House of Lords and the Court of Appeal and are also normally bound by their own previous decisions.

  • 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.

Remember that throughout your studies you are also using reading and note-taking skills. Table 1 has been provided to illustrate how this summary could be expressed in an alternative format. You need to find a note-taking style which suits you.

Table 1 The system of precedent

CourtOther courts it bindsOther courts it must follow
European Court of JusticeAll other courts on matters of EU lawNone
European Court of Human RightsAll other courts on human rights issues (Section 2 1998 Human Rights Act)None
House of LordsAll other courts in the English legal systemEuropean Court of Justice on EU law
European Court of Human Rights on human rights issues
Court of AppealItself (subject to some exceptions, e.g. Young v Bristol Aeroplane Co. Ltd (1944))European Court of Justice, European Court of Human Rights and House of Lords
Divisional Courts
All other lower courts
Divisional CourtsNormally have to follow their own previous decisionsEuropean Court of Justice, European Court of Human Rights, House of Lords and Court of Appeal
High Court
All other lower courts
High CourtCounty CourtsEuropean Court of Justice, European Court of Human Rights, House of Lords, Court of Appeal, Divisional Courts
Magistrates' courts
Crown CourtPossibly magistrates' courtsEuropean Court of Justice, European Court of Human Rights, House of Lords, Court of Appeal, Divisional Courts, High Court, i.e. all higher courts

Note that both the County Court and magistrates' courts do not create precedent. They are bound by the decisions of all higher courts.

In OpenLearn course W100_2 Parliament and the law there was an opportunity to read an Act of Parliament. In Activity 11 I would like to show you how to read a law case.

Activity 11 Reading a case

Timing: 0 hours 45 minutes

Now click here [Tip: hold Ctrl and click a link to open it in a new tab. (Hide tip)] to read the document (A v Essex County Council) (PDF, 0.2mb, 23 pages).

You should now be looking at the following case: A v Essex County Council.

Take a few moments to look at the case report. You will see at the top of the case the citation [2004] 1 FLR. This shows that the report is from the first volume of the Family Law Reports for 2004. (You will be examining the conventions of law reporting in more detail later in this course.)

The next thing you will see is the name of the case: A v Essex County Council. A refers to the person or people who brought the case – in this case the adoptive parents of a young boy. In order to protect his anonymity the courts have called the parents A so that the boy will not be easily identifiable. A are bringing a case against Essex County Council.

Beneath the name of the case is the citation [2003] EWCA Civ 1848. This is known as the neutral citation. (You will learn more about the neutral citation later in this course.) Below this are details of the court and the judges who decided the case.

Then you will see what is called the headnote, which has a summary of the facts of the case, followed by a statement of what the court decided. The barrister who reported the case, whose name is given at the end of the report, writes all of this. Headnotes are a very useful summary of the case but it is not unknown for headnotes to miss an essential point. Therefore law students should always read cases in their entirety (although that is not necessary for this activity).

Further down is a list of statutes and a list of previous cases which were referred to in the judgment. ‘Judgment’ (rather than ‘judgement’) isn't a misspelling; it refers to legal decisions or verdicts. The length of these lists will vary from case to case and may be long or short depending on the issues being addressed.

Then the judgment itself starts. There is no need for you to read the judgment. The object of this activity was to show you the physical layout of a law case. You may find it interesting to read the case if you wish.

One tip for your studies is to use a highlighter pen to highlight every case name/statute you come across in your law studies. This will make them easier to find when reviewing a course and also assist with your note taking.

Activity 12 requires you to use your internet skills to look up the House of Lords' website and examine a recent House of Lords' decision of your choice. You are asked to make a note of how many Law Lords gave a judgment and how many Law Lords were in agreement.

Activity 12 House of Lords' judgments

Timing: 0 hours 20 minutes
  1. Go to the http://www.supremecourt.gov.uk/ decided-cases/ index.html UK Supreme Court judgments .

  2. 2. This will provide you with a list of the latest UK Supreme Court judgments. Take 15 minutes or so to look through a judgment of your choice. While doing this make a note of how many Justices of the Supreme Court gave the judgment and how many were in agreement.

There is no requirement to read the judgment in its entirety. However, if you look at the first and last paragraph of each judgment you will see whether each of the Justices agrees or disagrees with the others.

Discussion

From Activity 12 you will see that each judgment of the UK Supreme Court will involve a number of Justices giving judgment. To be perfectly accurate, when a judge from the UK Supreme Court (they are known as Justices) delivers a judgment, it is technically called an ‘opinion’. They may not always be in agreement with each other, and, even if they all agree with the final judgment, their reasons for arriving at this opinion may differ. The question then arises, which part of the judgment is binding and sets a precedent? This is what we shall examine next.

W100_3

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