Topic 3
Should the
Court of
Appeal have
a Practice
Statement?
Judicial precedent
Topic
3
Powers
of the Court of Appeal to change
Judicial precedent
previous precedents
•Stare decisis: As with all courts the Court of Appeal (CA)
believes that certainty in the law is very important.
•The CA is bound by the Supreme Court and itself.
•CA Tool box: The SC can use all the tools of precedent that
other lower courts can, i.e. overruling, reversing, distinguishing.
•Overruling their own decisions: The CA is not allowed to do
this. They should refer any cases that might require overruling of
their own or the Supreme Courts previous precedent to the
Supreme Court.
•The Young exceptions: The CA does have the power not to
follow a previous binding precedent in limited situations first
explained in the Young v Bristol aeroplane case of 1944.
Topic 3The
CA is split into two parts
Judicial precedent
•As most appeals stop at the CA it has more judges to deal
with cases.
•The court is organised into 2 separate parts to ensure
judges with the correct expertise deal with the correct
cases.
•
•The Civil Division: Deals with all Civil appeals such as
contract law.
•The Criminal Division: Deals with all criminal appeals.
•As they deal with different law a precedent made in one
part of CA, say Criminal, doesn't bind the other part of the
court, in this case the Civil division.
Topic 3
The Young exceptions
Judicial precedent
•Both the Civil and Criminal division are not bound by
previous precedent in three situations:
1. Per Incuriam – Wrongly made law
2. Where the Supreme Court has made a new and
conflicting precedent since the last CA’s decision
on an area of law.
3. Where there are two or more decisions of the CA
which conflict (say different points of law).
For the Criminal division they have one further
exception:
1. Where the previous precedent could lead to
imprisonment of the D in the current case and this
was seen as unfair.
Topic 3
Per Incuriam
Judicial precedent
•If the previous precedent set by the CA
made an incorrect interpretation of the
then this doesn't bind the CA.
•Example: Willams v Fawcett 1986
C was committed to prison for breach of a non-molestation court order, he
attacked his wife. The paperwork failed to give details of when he attacked
his wife as required by the Act. However, previous precedent had allowed the
case to be won without the paperwork specifying the details of attacks.
Held: Sir John Donaldson MR:
These were important details that should have been present in the
paperwork according the Act. The previous precedent was therefore wrongly
decided though this is an exceptional case.
Topic Conflicting
3
Judicial precedent
decisions of the CA
1. If two precedents made by the CA appear to give
different decisions then the CA can decide which
one to follow.
Example: Starmark v CPL
Where the CA in the current case chose to follow
the earlier of two decisions that conflicted on
an issue to do with a rent review clause.
Topic 3
Criminal Division Exception
Judicial precedent
1. Where the law is misapplied or midunderstood and
following a precedent based on this could mean a
person going to prison then the previous precedent
doesn’t have to be followed.
Example: R v Spencer 1985
D’s were charged with ill treating mental patients in a hospital. Members of
the jury were directed not to discuss case with a discharged juror, three
members disregarded the direction. The issue was whether this
irregularity affected the trial.
Ratio: Since the Criminal Division was dealing with the liberty of the subject,
that Division would not follow a previous decision where the interests of
justice to an defendant required an earlier authority not to be followed;
and that, accordingly, the court would apply those principles in
determining the proper direction to be given to the jury.
Topic
3
Should
the CA be able to change
Judicial precedent
their own binding precedents?
Reasons For
• The Court of Appeal was
in essence the final court
of appeal for many cases
• CA should have the same
flexibility as the SC as it
is the final appeal court in
many cases.
• CA should be allowed to
develop the law as this
would make the law more
in tune with society.
Reasons Against
• Goes against the principle of
Stare Decisis, i.e.
consistency and predictability
• Can appeal to SC if really
important to do so.
• Would allow too much
flexibility and risk making the
law unfair
• As the power to change a
courts own precedent could
affect a large amount people
only one court should have
the ability to do this.
Topic
3
Challenge
to the rule in Young’s case
Judicial precedent
•From 1969 to 1979 Lord Denning tried to overrule CA
and House of Lords binding precedents on four separate
occasions.
•The House Lords said that the CA could not do this on all
of those occasions.
•After Lord Denning retired there have been no further
challenges by judges to enhance the powers of the CA.
•Gallie v Lee - Lord Denning argued that Young's case
exceptions are " a self-imposed limitation and we who
imposed it can also remove it”
•Broome v Cassell - House of Lords rebuked Lord
Denning and declared that under the doctrine of judicial
precedent it is necessary for all lower courts "including
the Court of Appeal, to accept loyally the decisions of
the higher tiers"— Lord Hailsham.