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Mechanics of precedent - ECJ, HofL and Privy Council

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Court of Justice of the European Communities

Binding nature of rulings

The European Court is not bound by its own decisions.

It binds all European Courts including the House of Lords.


House of Lords

London Tramways Ltd v London County Council [1898]

The highest appeal court should be final in the public interest, to create certainty in the law.


The rule did not produce the desired certainty in the law and it had become too rigid.


The Practice Statement [1966]


"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 degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.

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. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.

In this connection, they will bear in mind the danger of disturbing retrospectively 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.

This announcement is not intended to affect the use of precedent elsewhere than in this House."

Invalid Reasons for review.

  • Because that decision was wrong.

  • The earlier decision was by a narrow majority.

  • Because that decision has caused grave concern.

  • Issues, which are only of academic interest, will not be entertained

A material change of circumstances will usually have to be shown (Fitzleet Estates Ltd v Cherry [1977]; Jones v Secretary of State for Social Services; R v Knuller [1973].


Examples of the House of Lords departing from previous decisions and of overruling

Conway v Rimmer [1968]

Overruled Duncan v Cammell, Laird & co [1942] on discovery of documents.

Duncan was decided in wartime and was probably correct on its facts, holding that an affidavit sworn by a government minister was sufficient to enable the Crown to claim privilege not to disclose documents in civil litigation without those documents being inspected by the court (the so-called 'public interest immunity').


Herrington v British Railways Board [1972]


Whole case here

Overruled (or, at least, modified) Addie & Sons v Dumbreck [1929]


In Addie, an occupier of premises was only liable to a trespassing child who was injured by the occupier intentionally or recklessly.


In Herrington, they propounded the test of 'common humanity’, which involves an investigation of whether the occupier has done all that a humane person would have done to protect the safety of the trespasser.


Miliangos v George Frank (Textiles) Ltd [1976]

Overruled Re United Railways of the Havana & Regla Warehouses Ltd [1961]

In the United Railways case, the court held that courts could only award damages in Sterling in an English civil case. In Miliangos, they held that courts could award damages in the currency of any foreign country specified in the contract. The courts needed a new rule because of changes in foreign exchange conditions, and especially the instability of sterling, since 1961.


Jobling v Associated Dairies Ltd. [1981]

House of Lords doubted and did not follow its own decision given ten years earlier in Baker v Willoughby [1970].


Vestey v Commissioners of Inland Revenue [1979]

Overruled its decision in Congreve v Commissioners of Inland Revenue [1948], which had stood for some thirty years.

They thought the Congreve case was wrong and it would produce 'startling and unacceptable consequences' when applied to circumstances never contemplated when the court decided it.


Jones v Secretary of State for Social Services [1972]

(Decided on the construction of the National Insurance Act held that one of its own decisions of only five years' standing was wrong but they did not overrule it.


Secretary of State for the Home Department (en parte Khawaja), R v [1983]

On illegal immigration, the House declined to follow its own decision given in a case two and a half years earlier,

Lord Scarman:

The House must be satisfied on two counts.

1. That continued adherence to the precedent would involve the risk of injustice and would obstruct the proper development of the law.

2. That a departure from the precedent is the safe and appropriate way of remedying the injustice and developing the law.

Shivpuri, R v [1986]

In which the House of Lords overruled within twelve months its own earlier decision in Anderton v Ryan [1985] Lord Bridge (who sat in both appeals) said

"I am undeterred by the consideration that the decision in Anderton v Ryan was so recent The 1966 Practice Statement is an effective abandonment of our pretension to infallibility if a serious error embodied in a decision of this House has distorted the law, the sooner it is corrected the better."

Anderton v Ryan on the Criminal Attempts Act 1981 Ryan was not guilty of attempting dishonestly to handle a stolen video recorder. She thought the goods were stolen but, in fact, they were not. Shivpuri was also on the Criminal Attempts Act 1981, D was held to be guilty of attempting to commit a drugs offence. Customs caught him with a suitcase, which he thought contained prohibited drugs whereas it contained dried cabbage, snuff or some other harmless vegetable matter. He therefore, could not have committed the full offence but he was charged with attempting to commit the offence of being knowingly concerned in dealing with and harbouring prohibited drugs. He had intended to commit the full offence and had done acts which were 'more than merely preparatory. Mrs Ryan escaped conviction in spite of the clear words the Act that 'a person may be guilty of attempting to commit an offence to which this section applies even though the facts are such that the commission of the offence is impossible’; they said in effect, that these plain words did not mean what they said.

Shivpuri – Guilty

Mrs Ryan - Not guilty

Howe, R v [1987],

Overruled Director of Public Prosecutions for Northern Ireland v Lynch [1975] the defence of duress is not available to a person charged with murder, whether as a principal in the first degree (the actual killer) or as a principal in the second degree (an aider and abettor)(as it was in Lynch). Howe was based on a desire to restore this part of the criminal law to what it was generally understood to be prior to Lynch, even though to do so produced the illogical result that, while duress is a complete defence to all crimes less serious than murder, it is not even a partial defence to a charge of murder itself

R v Gotts [1992] extended the decision in R v Howe by holding that duress is not a defence to attempted murder.

Lord Hailsham;

"It may well be thought that the loss of a clear right to a defence justifying or excusing the deliberate taking of an innocent life in order to emphasise to all the sanctity of a human life is not an excessive price to pay in the light of these mechanisms . . .we live in the age of the holocaust of the Jews, of international terrorism on the scale of massacre, of the explosion of aircraft in mid air, and murder sometimes at least as obscene as anything experienced in Blackstone's day."

Lord Griffiths:

"We face a rising tide of violence and terrorism against which the law must stand firm recognising that its highest duty is to protect the freedom and lives of those that live under it. The sanctity of human life lies at the root of this ideal and I would do nothing to undermine it, be it ever so slight."

Pepper (Inspector of Taxes) v Hart [1993]

Declined to follow dicta in Beswick v Beswick [1968] on the use of Hansard as an extrinsic aid to the interpretation of statutes.


Status of conflicting Lords' decisions


When confronted by convicting decisions of the House of Lords the courts are entitled, and bound, to follow the later decision.


R v R (rape: marital exemption) [1991]


Whole case here

Abolished a husband's 250 year-old immunity from criminal liability for raping his wife. They justified the decision on the basis that the case was not concerned with the creation of a new offence but with their duty to remove from the common law a fiction, which had become unacceptable


They saw the decision as an example of the ability of the common law to evolve 'in the light of changing social, economic and cultural developments'.


Clegg, R v [1995]

D fired several shots at a car whilst he was on check point duty in Northern Ireland. The car was approaching the checkpoint at speed and did not appear to be going to stop. One of the passengers was killed. Clegg was charged and convicted of murder.

It was argued that the House should make new law by creating a new qualified defence - available to a soldier or police officer acting in the course of his duty - of using excessive force in self-defence, or to prevent crime, or to effect a lawful arrest.  By doing so it would reduce murder in such cases to manslaughter.


Held: Lord Lloyd, whilst not averse to judicial law-making - citing R v R as a good example of it – said that he had no doubt that they should abstain from law-making in the instant case since the reduction of murder to manslaughter was essentially a matter for Parliament, and not the courts.


D’s conviction was later quashed on different grounds

C v Director of Public Prosecutions [1995]

Refused to abolish the rebuttable common law presumption that a child between the ages of 10 and 14 is incapable of committing a crime despite the anomalies and absurdities it produced. They called upon Parliament to review it.

Lord Lowry discerned in the case law the following guidelines for judicial law making:

(a) Judges should exercise caution before imposing a remedy where the solution to a problem is doubtful:

(b) They should be cautious about making changes if Parliament has rejected opportunities of dealing with a known problem or has legislated while leaving the problem untouched:

(c) They are more suited to dealing with purely legal problems than disputed matters of social policy:

(d) Fundamental legal doctrines should not lightly be set aside:

(e) Judges should not change the law unless they can achieve finality and certainty

Parliament later changed the rule

Between l966 and l975 Lord Reid articulated at least seven criteria relating to the use of the Practice Statement

Five are negative two are positive ones:

  1. The freedom granted by the 1966 Practice Statement, ought to be exercised sparingly.

  2. Should not to upset the legitimate expectations of people who have entered into contracts or settlements or otherwise regulated their affairs in reliance on the validity of that decision.

  3. Should not on the questions of construction of statutes or other documents except in rare and exceptional cases.

  4. (a) Should not overrule if it would be impracticable for the Lords to foresee the consequences of departing from it.
     (b) Should not overrule if to do so would involve a change that ought to be part of a comprehensive reform of the law, best done by legislation.

  5. Should not merely because the Law Lords consider that it was wrongly decided. There must be some additional reasons to justify such a step.

  6. Should overrule if it causes such great uncertainty in practice that the parties' advisers are unable to give any clear indication as to what the courts will hold the law to be.

  7. Should overrule if in relation to some broad issue or principle it is not considered just or in keeping with contemporary social conditions or modern conceptions of public policy.


Note that we are talking about the "horizontal" effect of precedent in the House of Lords.


Judicial Committee of the Privy Council

Decisions (technically, 'advice') of the Judicial Committee are not binding on the English courts but they are of strong persuasive authority.

Decisions of the Judicial Committee are binding in the country from which the appeal came and, possibly, in other countries subject to its jurisdiction where the law on the particular point is the same.

Lord Lloyd;

"The ability of the common law to adapt itself to the differing circumstances of the countries in which it has taken root, is not a weakness, but one of its great strengths. Were it not so, the common law would not have flourished as it has, with all the common law countries learning from each other."

Nine strong PC decisions will be preferred to HofL

The case of Jersey v Holley [2005] PC was heard by the Privy Council and they had to decide an issue relating to provocation in murder.  Nine judges sat to decide that the law should be returned to the position before the a case called R v (Morgan James) Smith (2000) HL.  Effectively they were saying Smith was wrong.


The judges that sit in the Privy Council are the very same men and women that make up the House of Lords (but not all the same in both these two cases), so a Privy Council decision is very powerful.


James and Karimi, R v [2006] CA


Red triangle indicating important information


Within months of Holley the Court of Appeal was confronted with two conjoined appeals referred to them by the CCRC on the very point raised in Holley.


Their dilemma was which precedent should they follow, the House of Lords or the Privy Council?  A court of 5 judges was gathered by the Lord Chief Justice and they decided that when there were such conflicting precedents then the PC could be followed. 


Not to be taken to mean it is the norm

They also ruled that this was not to be taken as a licence to decline to follow a decision of the House of Lords in any other circumstances.


So, in some rare cases the Privy Council decisions are more than persuasive.


Consistent with other ruling

This decision was not altogether surprising because the Court of Appeal had followed the Privy Council in R v Mohammed [2005] CA a few weeks earlier.


Court of Appeal were following the intention of the Law Lords

" ... it is not this court, but the Lords of Appeal in Ordinary who have altered the established approach to precedent."

Lord Phillips in James & Karimi

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