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Mechanics of precedent - Court of Appeal

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Lord Asquith in the Court of Appeal said

"A trial judge should be quick, courteous and right. That is not to say that the Court of Appeal should be slow, rude and wrong, for that would usurp the function of the House of Lords."

On whom binding

Decisions are binding on the High Court and the county courts but they do not bind the House of Lords.

 

Each Division does not bind the other, but are persuasive.

 

(Courts can sit simultaneously, and in 1990 two Criminal Division courts sitting on the same day reached opposite conclusions on the interpretation of intent for offences deriving from 19th Century legislation.)

 

Court of Appeal (civil division)

Young v Bristol Aeroplane co. Ltd [1944]

 

A 'full' Court of Appeal of six members decided that it was normally bound by its previous decisions subject to the following three exceptions:

  • Where its own previous decisions conflict. The Court of Appeal must decide which to follow and which to reject.

  • Where to follow a decision of its own which conflicts with a decision of the House of Lords even though its decision has not been expressly overruled by the House of Lords.

  • Where an earlier decision was given per incuriam (by ‘carelessness’ or mistake’ or ‘manifest slip’ or ‘error'.)

A fourth exception

That the Court of Appeal is not bound to follow a decision in an interlocutory matter made by two judges in the Court of Appeal Boys v Chaplin [1968].

 

A fifth exception exists

In order to give full effect to Community law if one of their previous decisions is inconsistent with Community law.

 

United Kingdom membership of the European Union has not abrogated the doctrine of stare decisis in the Court of Appeal (Duke v Reliance Systems Ltd [1987] CA).

 

A sixth exception

Is the application of the Human Rights Act 1998.

Court of Appeal (criminal division)

100 years

The Criminal Division of the Court of Appeal has existed for 100 years.

The average waiting time for conviction appeals is less than a year, and for sentence appeals it is less than 6 months.

 

Stare decisis much the same as Civil Division

In principle, there is no difference in the application of stare decisis as between the civil and criminal divisions of the Court of Appeal; R v Spencer [1985] not overruled on this point by the House of Lords.

 

Because someone’s liberty may be at stake, precedent is not followed as rigidly in the criminal division.

 

Appeals against conviction and sentence

 

2005/06

2006/07

Appeals against conviction

1530

1598

Appeals against sentence

4914

5176

The table shows that only about a third of appeals are against conviction, two thirds against sentence.

 

Only since 1988 has the prosecution been able to appeal against sentences as unduly lenient, via an Attorney General reference.

 

Conflicting decision of Privy Council and the House of Lords

 

Red triangle, important information

R v James and Karimi [2006] CA was decided by an enlarged Court of Appeal which followed a Privy Council precedent rather than an earlier House of Lords precedent.  The case related to the reasonable man test in provocation in murder.

 

This means that when a decision involving English Law and the majority in the Privy Council so decide a Privy Council decision can be preferred.

 

This disturbs the previous understanding of the rules of stare decisis, but is not remarkable in practical terms.  Previously it would have been noted that the Privy Council decision was merely persuasive, now it can be followed.

 

Court of Appeal Criminal Division annual reports

http://www.judiciary.gov.uk/publications_media/general/index.htm#general

 

 

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