Judicial Precedent: The Hierarchy Of The Courts (Copy)

1.2.1 Sources of Law

The Hierarchy of the Courts

Introduction

• The doctrine of judicial precedent operates effectively only within a clear court hierarchy.
• The hierarchy determines:
  1. Which decisions are binding on which courts.
  2. Which decisions are merely persuasive.
  3. How a court can deal with its own past decisions (whether bound or not).
• In England and Wales, the hierarchy reflects both civil and criminal jurisdictions, though the structure is largely parallel.

The Supreme Court (formerly House of Lords until 2009)

• Highest court in the UK (civil and criminal appeals).
• Decisions are binding on all other courts in England and Wales.
• Not strictly bound by its own decisions since the 1966 Practice Statement, which allows it to depart from past rulings “when it appears right to do so.”
• Example:
  • R v Shivpuri (1986): Supreme Court (then House of Lords) used the Practice Statement to overrule Anderton v Ryan (1985) on attempts to commit impossible crimes.
  • R v G (2003): Overruled Caldwell (1982) on recklessness.
• Influence of the Supreme Court:
  • Sets binding legal principles.
  • Develops law incrementally or through major shifts.
  • Highly persuasive even in other common law jurisdictions.

The Court of Appeal

• Divided into two divisions: Civil and Criminal.
• Binds all lower courts, but its relationship with its own past decisions differs:

1. Civil Division
   • Bound by its own past decisions subject to the three exceptions in Young v Bristol Aeroplane (1944):
     1. Conflicting past decisions.
     2. Supreme Court overrules a past decision.
     3. Decision made per incuriam (in error, e.g., statute overlooked).
2. Criminal Division
   • Normally follows the same rules as Civil Division.
   • However, it has extra flexibility where liberty of the subject is at stake (R v Gould (1968)).
   • Criminal law may therefore develop more fluidly.

• Example Cases:
  • Davis v Johnson (1979): Civil Division followed its own earlier decision despite House of Lords criticism.
  • R v Taylor (1950): Criminal Division recognised extra flexibility in interests of justice.

High Court

• Divided into three divisions: Queen’s Bench Division (QBD), Chancery Division, and Family Division.
• Binds lower courts (County Courts, Crown Court, Magistrates’ Courts).
• Decisions are persuasive on courts of equal standing, not binding.
• Example:
  • QBD decisions often create influential precedent, especially in judicial review.
  • Entick v Carrington (1765): Established principle that state officials cannot act without legal authority – binding on lower courts and still cited today.

Crown Court

• Primarily a trial court for serious criminal offences and appeals from Magistrates’ Courts.
• Decisions do not bind other courts, but may be persuasive in rare cases.
• Crown Court judges (High Court judges when sitting there) may create binding precedent if judgment is reported at High Court level.

County Courts

• Trial courts for civil disputes (contract, tort, property, family).
• Decisions do not create binding precedent.
• Occasionally persuasive if reasoning is strong.

Magistrates’ Courts

• First-instance courts for minor criminal cases, family matters, licensing.
• Decisions do not create precedent.
• Not reported in law reports; function is administrative rather than precedent-setting.

Judicial Committee of the Privy Council

• Not part of domestic hierarchy but decisions are highly persuasive.
• Often treated almost like binding authority because of the seniority of judges (usually also Supreme Court justices).
• Example:
  • The Wagon Mound (No. 1) (1961): Privy Council decision on remoteness of damage in negligence; followed widely in UK courts.
  • A-G for Jersey v Holley (2005): Privy Council ruling on provocation treated as authoritative over conflicting House of Lords case (R v Smith), showing practical weight of its judgments.

European Court of Justice (CJEU) – Before Brexit

• While the UK was an EU member (1973–2020), CJEU decisions were binding on all UK courts where EU law applied.
• Factortame (No. 2) (1991): UK courts suspended provisions of the Merchant Shipping Act 1988 as incompatible with EU law.
• Post-Brexit: retained EU law still exists, and pre-Brexit CJEU case law remains binding on lower courts unless overruled by the Supreme Court or Court of Appeal.

European Court of Human Rights (ECtHR)

• Under the Human Rights Act 1998, UK courts must “take into account” ECtHR decisions.
• Not strictly binding, but highly persuasive.
• Example: R v A (2001): House of Lords followed Strasbourg jurisprudence to interpret statute compatibly with Article 6 (fair trial).

Court Hierarchy Summary Table

Evaluation

• Strengths of the Hierarchy
  • Provides certainty and structure to judicial precedent.
  • Ensures consistent development of the law.
  • Allows for controlled flexibility (Supreme Court’s Practice Statement; Young exceptions).
• Weaknesses of the Hierarchy
  • Complexity: distinguishing between binding and persuasive precedent requires deep analysis.
  • Rigidity: lower courts cannot depart from higher authority even if it seems unjust.
  • Supreme Court’s freedom to depart is rarely exercised, so outdated precedents may persist.

Conclusion

• The hierarchy of the courts underpins the doctrine of precedent by dictating how binding force flows through the system.
• It ensures certainty and consistency while also allowing limited mechanisms for change.
• With influences from the Privy Council, ECtHR, and retained EU law, the hierarchy reflects both domestic authority and international influence.

Written and Compiled By Sir Hunain Zia, World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course