Supreme Court
Perhaps the most significant change to have taken place in the English legal system in recent times is the replacement of the judicial committee of the House of Lords by the Supreme Court. The Supreme Court began its work on 1 October 2009 and was officially opened by the Queen on 16 October 2009. The court will be considered in much more detail in later chapters, but as the replacement for the House of Lords it now clearly sits at the pinnacle of the English court hierarchy and, as such, its future decisions will have the same effect and binding power as those of its predecessor. Given the novelty of the Supreme Court, with the related lack of actual judgments, the decision has been taken that it would be wrong simply to delete references to the House of Lords and tedious to continually refer to the House of Lords as the House of Lords/Supreme Court. Consequently all future, and indeed previous, references to the House of Lords will be assumed to apply to the Supreme Court. However, it is inescapable that what follows will contain a mixture of the two titles as is considered appropriate. It should also be mentioned that the Supreme Court continues the previous alternative existence of the House of Lords as the distinct institution the Privy Council.
Supreme Court decisions
The decisions of the Supreme Court are binding on all other courts in the legal system, except the Supreme Court itself. The House of Lords was bound by its own previous decisions until it changed this practice in 1966. The old practice had been established in the nineteenth century and was reaffirmed in a famous case in 1898 – London Tramways Co Ltd v London County Council. The rationale for the old practice was that decisions of the highest court in the land should be final so that there would be certainty in the law and a finality in litigation.
The rule, however, did not appear to create certainty and had become very rigid by the end of the nineteenth century. The practice was eventually changed in July 1966 when Lord Gardiner, the Lord Chancellor, made a statement on behalf of himself and his fellow Law Lords. This Practice Statement [1966] 3 All ER 77 runs as follows:
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 special need for certainty as to the criminal law.
This announcement is not intended to affect the use of precedent elsewhere than in this house.
The current practice enables the Supreme Court to adapt English law to meet changing social conditions and to pay attention to the decisions of superior courts in the Commonwealth. It was also regarded as important at the time that the House of Lords’ practice be brought into line with that of superior courts in other countries, like the United States Supreme Court and state supreme courts elsewhere, which are not bound by their own previous decisions. It also has the effect of bringing the practice of the UK’s highest domestic court into line with the practice of both the ECJ and the European Court of Human Rights (ECtHR), neither of which is bound by a rigid doctrine of precedent, although in practice they do not wilfully ignore previous decisions they have made. The possibility of the Supreme Court changing its previous decisions is a recognition that law, whether expressed in statutes or cases, is a living, and therefore changing, institution that must adapt to the circumstances in which and to which it applies if it is to retain practical relevance.
Any appellant who intends to ask the Supreme Court to depart from its own previous decision must draw special attention to this in the appeal documents (Practice Direction (House of Lords: Preparation of Case) [1971] 1 WLR 534). After 1966, the House used this power quite sparingly and no doubt the Supreme Court will continue this reluctance. It will not refuse to follow its earlier decision merely because that decision was wrong. A material change of circumstances will usually have to be shown.
In Conway v Rimmer (1968), the House of Lords unanimously overruled Duncan v Cammell Laird and Co (1942) on a question of the discovery of documents. Duncan v Cammell Laird and Co concerned the question of whether a plaintiff could get the defendant to disclose documents during wartime, which related to the design of a submarine. Conway v Rimmer concerned whether a probationary police officer could insist on getting disclosure of reports written about him by his superintendent. In the earlier case, the House of Lords held 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. In the later case, their Lordships held that the minister’s affidavit was not binding on the court. The second decision held that it is for the court to decide whether or not to order disclosure. This involves balancing the possible prejudice to the state if disclosure is ordered against any injustice that might affect the individual litigant if disclosure is withheld. Today, the minister’s affidavit will be considered by the court, but it is no longer the sole determinant of the issue.
In Herrington v British Railway Board (1972), the House of Lords overruled Addie and Sons v Dumbreck (1929). In the earlier case, the House of Lords had decided that an occupier of premises was only liable to a trespassing child if that child was injured by the occupier intentionally or recklessly. In its later decision, the House of Lords changed the law in line with the changed social and physical conditions since 1929. Their Lordships felt that even a trespasser was entitled to some degree of care, which they propounded as a test of ‘common humanity’.
In R v United Railways of the Havana and Regla Warehouses Ltd (1961), the House of Lords decided that damages awarded in an English civil case could only be awarded in sterling. The issue came up for reconsideration in 1976, by which time there had been significant changes in foreign exchange conditions, and the instability of sterling at the later date was of much greater concern than it had been in 1961. In the second case, Miliangos v George Frank (Textiles) Ltd (1976), the House of Lords overruled the earlier decision, stating that damages could be awarded in other currencies.
In R v Secretary of State for the Home Department ex p Khawaja (1983), the House of Lords departed from its own previous decision made two years earlier – R v Secretary of State for the Home Department ex p Zamir (1980). The earlier case had put the main burden of proof on an alleged illegal immigrant to show that his detention was not justified. In its decision two years later, the House of Lords expressed the view that the power of the courts to review the detention and summary removal of an alleged illegal immigrant had been too narrowly defined in the 1980 decision. It held that continued adherence to the precedent would involve the risk of injustice and would obstruct the proper development of law.
In Murphy v Brentwood District Council (1990), the House of Lords overruled its earlier decision in Anns v Merton London Borough Council (1978) on the law governing the liability of local authorities for the inspection of building foundations. In the earlier decision, the House of Lords held that a local authority was under a legal duty to take reasonable care to ensure that the foundations of a building complied with building regulations. The duty was owed to the owner and occupier of the building who had a legal action if the duty was broken. This created a very wide and extensive duty of care for local authorities, which was out of kilter with the development of this area of law (negligence) in relation to other property-like goods. There was considerable academic and judicial resistance to the decision in Anns. In overruling it, the House of Lords in Murphy cited the reluctance of English law to provide a remedy for pure economic loss, that is, loss that is not consequential upon bodily injury or physical damage.
If a person commits a murder or assists someone to do so under duress, that is, while under threat that unless they kill or help, they themselves will be murdered, should this afford them a legal defence? In DPP for Northern Ireland v Lynch (1975), the House of Lords decided that duress was available as a defence to a person who had participated in a murder as an aider and abettor. Twelve years later, the House of Lords overruled that decision. It held in R v Howe (1987) that the defence of duress is not available to a person charged with murder or as an aider and abettor to murder. Some people might regard it as unjust that a person who kills, or assists in a killing, while under duress should be so severely punished under the criminal law, but in taking away the defence of duress from murderers and those who assist them, the House of Lords founded its decision partly upon considerations of social policy (it made references to a rising tide of crimes of violence and terrorism that needed a strict response from the law) and a recognition that, where people killed others or assisted in such events while under duress, their conviction could be addressed by other mechanisms, such as the availability of parole and the royal prerogative of mercy.
Another significant example of the House of Lords recognising and accommodating changed circumstances can be seen in Hall v Simons (2000), in which it declined to follow the previous authority of Rondel v Worsley (1969), which had recognised the immunity of barristers against claims for negligence in their presentation of cases (see below, 16.5.1, for an extended analysis of this case).
In R v G (2003) the House of Lords disapproved of Lord Diplock’s objective explanation of recklessness in relation to criminal law as stated previously in R v Caldwell (1982).
Whether or not the Supreme Court is inclined to be more active than the former House of Lords is a moot point, but it certainly is true that 2015 saw it changing precedents in two significant areas.
Thus Montgomery v Lanarkshire Health Board (Scotland) [2015] UKSC 11 saw a change in approach to medical negligence. In Sidaway v Board of Governors of the Bethlem Royal Hospital (1985) the House of Lords had no doubt reflected a historically more reverential/paternalistic approach to the medical profession in holding that it was generally a matter for doctors to decide how much patients should be told about their treatment and any dangers inherent in it. The principle was that, just as the standard of medical care was to be determined by medical evidence (the Bolam principle established in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582), so the extent and quality of information provided to a patient about any such treatment was also for the medical experts to determine. Consequently, an uninformed patient, injured in the course of treatment, could not sue a doctor in negligence for failing to inform them of the inherent risk in the treatment, if other reasonable doctors would not have informed them of the risk.
In Montgomery, the Supreme Court rejected the majority decision in Sidaway, preferring the dissenting judgment of Lord Scarman which held that there was a duty for doctors to warn patients of any material risk inherent in their treatment.
In the course of their joint leading judgment, Lords Kerr and Reed not only made it clear that Sidaway was overruled, but that it had already been effectively sidelined before the present action of the Supreme Court:
It follows that the analysis of the law by the majority in Sidaway is unsatisfactory… It is unsurprising that courts have found difficulty in the subsequent application of Sidaway and that the courts in England and Wales have in reality departed from it; a position which was effectively endorsed, particularly by Lord Steyn, in Chester v Afshar (para 86).
Also in 2015 the Supreme Court upheld the validity of two disputed penalty clauses in Cavendish Square Holding BV (Appellant) v Talal El Makdessi (Respondent) and Parking-Eye Limited (Respondent) v Beavis (Appellant) (2015). However, in doing so it altered the accepted the test for deciding whether or not such a clause was enforceable, as set out previously in Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd (1915). In the latter case the House of Lords established the clear rule, and one that has featured in all contract textbooks since then, that the test was whether the clause in question was either:
- (i) a genuine pre-estimate of loss consequent upon breach of the contract, in which case it was enforceable; or
- (ii) a punitive deterrence designed to forestall the very possibility of breach, in which case it was not enforceable.
In the current cases, the Supreme Court rejected this approach as unhelpful and allowed itself to describe the old the rule as one that had ‘not weathered well’. However, the court also recognised that it was a well-established principle in the United Kingdom, Europe and other common law jurisdictions and consequently it was reluctant to, and did not, disapply it completely. Nonetheless it reformulated the test in such a way as to make Dunlop irrelevant. Now, the test for the enforceability of a damages clause in a contract is whether the innocent party can claim a legitimate interest in the enforcement of the clause:
The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation (para 32).
As with the old test, the new one can be divided into two parts:
- (i) does the clause protect a legitimate business interest; and, if so,
- (ii) is the provision made in the clause extravagant, exorbitant or unconscionable?
The decisions in two cases delivered in February 2016 confirmed the Supreme Court’s readiness to deal with awkward, not to say unfair, precedents set in previous House of Lords decisions.
R v Jogee and Ruddock v R (2016) related to conjoined appeals against murder convictions based on the doctrine of ‘parasitic accessory liability’ better known as the ‘joint enterprise’ doctrine, whereby someone who participated with another party in committing a specific crime, and foresaw the possibility that the other party might commit another crime in the course of the first criminal activity, then they could be tried as a joint principal in relation to that second criminal offence, even if they did not actually take part in it. The joint enterprise doctrine was first applied in the Privy Council case Chan Wing-Siu v R (1985) and was subsequently approved and adopted by the House of Lords in the cases of R v Powell; R v English (1997) and applied in many subsequent cases. The unanimous view of the Supreme Court was that:
… we do not consider that the Chan Wing-Siu principle can be supported, except on the basis that it has been decided and followed at the highest level. In plain terms, our analysis leads us to the conclusion that the introduction of the principle was based on an incomplete, and in some respects erroneous, reading of the previous case law, coupled with generalised and questionable policy arguments. We recognise the significance of reversing a statement of principle which has been made and followed by the Privy Council and the House of Lords on a number of occasions. We consider that it is right to do so… (para. 79).
We consider that the proper course for this court is to re-state, as nearly and clearly as we may, the principles which had been established over many years before the law took a wrong turn. The error was to equate foresight with intent to assist, as a matter of law; the correct approach is to treat it as evidence of intent (para 87, emphasis added).
In Knauer v Ministry of Justice (2016) a seven-strong panel of the Supreme Court overturned two previous House of Lords judgments, Cookson v Knowles (1979) and Graham v Dodds (1983), in ruling that the multiplier in assessing damages for fatal accident claims should be calculated from the date of the trial, not the date of death. Delivering the judgment of the court, Lord Neuberger and Lady Hale stated the reason for the decision was that:
Calculating damages for loss of dependency upon the deceased from the date of death, rather than from the date of trial, means that the claimant is suffering a discount for early receipt of the money when in fact that money will not be received until after trial (para 7).
This case is of particular interest in that the judge at first instance, in the High Court, was sympathetic to the claimant’s case, which was supported by a Law Commission report on the issue, but recognised that he could not simply ignore the clear precedent set in the House of Lords decisions. He did, however, authorise an a ‘leapfrog’ appeal straight to the Supreme Court, which itself was very conscious of the issue of precedent, as its judgment made clear:
… it is important not to undermine the role of precedent in the common law. Even though it appears clear that both the reasoning and conclusion on the point at issue in Cookson v Knowles and Graham v Dodds were flawed, at least in the light of current practice, it is important that litigants and their advisers know, as surely as possible, what the law is. Particularly at a time when the cost of litigating can be very substantial, certainty and consistency are very precious commodities in the law. If it is too easy for lower courts to depart from the reasoning of more senior courts, then certainty of outcome and consistency of treatment will be diminished, which would be detrimental to the rule of law.
In our view, therefore, the issue is whether this is a case where this Court should apply the 1966 Practice Statement. In that connection, it is well established that this Court should not refuse to follow an earlier decision of this Court or the House of Lords merely because we would have decided it differently… More than that is required, not least because of the desirability of certainty in the law, as just discussed. However, as Lord Bingham said in the same passage, while ‘former decisions of the House are normally binding… too rigid adherence to precedent may lead to injustice in a particular case and unduly restrict the development of the law’.
This Court should be very circumspect before accepting an invitation to invoke the 1966 Practice Statement. However, we have no hesitation in concluding that we ought to do so in the present case (paras 21–23).
The jurisprudence of ex turpi causa non oritur actio
In Jetivia SA v Bilta (UK) Ltd [2015] UKSC 23 the Supreme Court considered the issue of ‘ex turpi causa non oritur actio’, otherwise known as the ‘illegality defence’. This term refers to the doctrine which holds that a party cannot pursue a legal remedy if it arises as a result of, or in connection with, their own illegal act. In this instance the Supreme Court had no doubt in holding that, where the directors of a company involve their company in a fraudulent transaction, the ex turpi doctrine cannot be used to prevent the company from taking action against those directors. In other words, the fraudulent directors cannot rely on their own wrongdoing to escape liability, as those dishonest acts are not attributable to the company.
The Court’s decision in Jetivia was unanimous, but the same cannot be claimed for the underlying reasoning in the individual judgments as regards the jurisprudential underpinnings of the ex turpi doctrine. However, as the actual decision was on the basis of non-attribution, the detailed and differing considerations of the ex turpi doctrine were no more than obiter dicta. On the basis of the contradictory explanations of the operation of the doctrine, not only in this but also in previous Supreme Court cases (see Hounga v Allen [2014] 1 WLR 2889 and Les Laboratoires Servier v Apotex Inc [2015] AC 430), Lord Neuberger concluded in his judgment that the best course of action would be for an expanded Supreme Court panel to specifically address the doctrine of ex turpi as soon as possible. Such a hearing will of course depend on a suitable case arising and being argued as far as the Supreme Court.
The whole issue was considered in an interesting internet article by barrister Ryan S. Deane available at http://www.lexology.com/library/detail.aspx?g=68c8f065-b2b7-4883-a923-eecdae8028d6.
Deane’s conclusion was:
As things stand, the safe bet is that the law underpinning the illegality defence remains as stated in Tinsley v Milligan. The decision remains binding authority unless and until the Supreme Court expressly departs from its approach. With the prospect of a final battle involving every member of the Supreme Court, however, it is advisable to wait until the dust settles before a victor in this war about illegality can be declared.
It would be advisable to keep an eye open for future developments in this area.
A case study: the House of Lords, the Practice Statement and the Limitation Act 1980
Under s 2 of the Limitation Act 1980, the general rule is that the period of limitation for an action in tort is six years from the date on which the cause of action accrues. However, ss 11 to 14 establish a different regime for actions for damages for negligence, nuisance or breach of duty where the damages are in respect of personal injuries. In these latter cases, the limitation period is three years from either the date when the cause of action accrued or the ‘date of knowledge’ as defined in s 14, whichever is the later. In addition, s 33 gives the court discretion to extend the period within which a claim can be lodged when it appears that it would be equitable to do so. It can be seen that the latter regime is much more liberal than the strictly constrained s 2 procedure, and in recent cases the House of Lords has been required to consider the extent to which the more liberal s 11 regime should be applied. In doing so, however, it has had to consider the extent to which its own previous restrictive judgments should continue to apply or whether it should exercise its powers under the 1966 practice statement in order to overrule those previous authorities.
The first such decision, Horton v Sadler (2007), concerned the circumstances under which a court might exercise its discretion to allow an out-of-time claim under s 33 of the Act. In Walkley v Precision Forgings Ltd (1979) the House had previously decided that the exercise of such discretion was not possible where a writ had been issued before the limitation period expired, but the action had not been pursued to completion. The reasoning of the court appeared to be that, as the action had actually been started within the limitation period, it could not be argued that it was the limitation period as such that prevented its completion. However, in Horton v Sadler the House of Lords revealed the flaw in the earlier reasoning in Horton, which had focused on the first action to the exclusion of the later action. In the opinion of the House in Horton it was the circumstances of the later case, begun after the expiration of the limitation period, that had to be examined in deciding whether or not the s 33 discretion could be exercised. For that reason, the House of Lords overruled its previous ruling in Walkley v Precision Forgings Ltd.
The next issue relating to the operation of the Limitation Act 1980 arose in a series of unrelated cases in which six appellants, all of whom alleged that they had been victims of sexual abuse during their childhood, appealed against decisions of lower courts that their claims were statute-barred under s 2 of the Limitation Act 1980. The cases assumed a level of notoriety in the popular press due to the linked case of A v Hoare (2008) in which the defendant had been convicted in 1989 of an attempted rape of the claimant, involving a serious and traumatic sexual assault. He was sentenced to life imprisonment, but in 2004, while still serving his sentence, he won £7 million on the UK national lottery. Subsequently the claimant started proceedings for damages in December 2004.
In each of the cases, the respective judges had been constrained by judicial precedent to follow the previous House of Lords’ judgment in Stubbings v Webb (1993), which had decided unanimously that s 11 of the Limitation Act 1980 did not apply in cases of deliberate assault, including indecent assault. The House clearly considered that an action for an intentional trespass to the person did not amount to an action for ‘negligence, nuisance or breach of duty’ within the meaning of s 11(1) of the Act. As a consequence of Stubbings, such claimants were subject to the three-year limitation period rather than the more generous provisions in ss 11–14 and s 33 which allowed for claims to be brought out of time if the court considered this was equitable.
In A v Hoare the House of Lords, again unanimously, held that Stubbings v Webb had been wrongly decided and concluded that ss 11 and 33 of the Limitation Act 1980 did extend to claims for damages in tort arising from trespass to the person, including sexual assault. As Baroness Hale pointed out, it is a common feature of claims for sexual abuse that they are instituted many years after the events complained of and thus very often after a limitation period of six years has passed. To subject such claims to the rigours of s 2 limitations effectively would be to deny access to justice to those who had suffered such abuse.
A’s case was remitted to the Queen’s Bench Division to decide whether the discretion under s 33 should be exercised in her favour and subsequently, and not very surprisingly, in June 2008 Mr Justice Coulson exercised the s 33 discretion in favour of A.
A subsequent appeal by Hoare to the ECtHR was rejected as inadmissible (Hoare v UK (2011)). In rejecting Hoare’s argument that the House of Lords had effectively changed the law, retrospectively, the court stated that:
however clearly drafted a legal provision may be, in any system of law, there is always an inevitable element of judicial interpretation. Equally, there will always be a need for elucidation of doubtful points and for adaptation to changing circumstances.
Perhaps the ultimate irony for Hoare lay in the fact that the ECtHR had previously refused to interfere in the original Stubbings case (Stubbings v UK (1993)).
Precedent, the Supreme Court and the European Court of Human Rights
The effect of the Human Rights Act on the operation of the doctrine of precedent, and in particular the impact of decisions of the ECtHR on the Supreme Court, has already been mentioned in Chapter 2. Reference may well be made to the stark expression of that relationship made by Lord Rodger in Secretary of State for the Home Department v AF (2009), one of the last cases to be heard by the House of Lords:
Even though we are dealing with rights under a United Kingdom statute, in reality, we have no choice… Strasbourg has spoken, the case is closed.
However, a more considered, if no less resigned, expression of the relationship, with the ECtHR being clearly the superior court with its judgments overruling those of the domestic English court, may be found in Lord Hoffmann’s pragmatic judgment in the same case. As he put it:
I agree that the judgment of the European Court of Human Rights (‘ECtHR’) in A v United Kingdom (Application No 3455/05) requires these appeals to be allowed. I do so with very considerable regret, because I think that the decision of the ECtHR was wrong and that it may well destroy the system of control orders which is a significant part of this country’s defences against terrorism. Nevertheless, I think that your Lordships have no choice but to submit. It is true that section 2(1)(a) of the Human Rights Act 1998 requires us only to ‘take into account’ decisions of the ECtHR. As a matter of our domestic law, we could take the decision in A v United Kingdom into account but nevertheless prefer our own view. But the United Kingdom is bound by the Convention, as a matter of international law, to accept the decisions of the ECtHR on its interpretation. To reject such a decision would almost certainly put this country in breach of the international obligation which it accepted when it acceded to the Convention. I can see no advantage in your Lordships doing so.
On replacing the House of Lords, the Supreme Court adopted a more open and self-confident approach to the authority of the ECtHR. Thus in R v Horncastle (2009) ([2009] UKSC 14 for reference), one of the earliest cases heard by the newly constituted court, Lord Phillips explained the relationship as follows:
The requirement to ‘take into account’ the Strasbourg jurisprudence will normally result in the domestic court applying principles that are clearly established by the Strasbourg court. There will, however, be rare occasions where the domestic court has concerns as to whether a decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to the domestic court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give the Strasbourg court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between the domestic court and the Strasbourg court.
Subsequently, in Manchester City Council v Pinnock (2011) ([2011] UKSC 6 for reference), before he became president of the Supreme Court, Lord Neuberger went further in stating that:
This Court is not bound to follow every decision of the ECtHR. Not only would it be impractical to do so: it would sometimes be inappropriate, as it would destroy the ability of the Court to engage in the constructive dialogue with the ECtHR which is of value to the development of Convention law (see e.g. R v Horncastle (2009)). Of course, we should usually follow a clear and constant line of decisions by the ECtHR: R (Ullah) v Special Adjudicator (2004). But we are not actually bound to do so or (in theory, at least) to follow a decision of the Grand Chamber. As Lord Mance pointed out in Doherty v Birmingham (2009), section 2 of the HRA requires our courts to ‘take into account’ EurCtHR decisions, not necessarily to follow them. Where, however, there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this Court not to follow that line.
Then, as president of the Supreme Court, Lord Neuberger considered the role of judges in human rights jurisprudence in a speech delivered to a conference at the Supreme Court of Victoria, Melbourne, Australia. Perhaps rather disingenuously quoting his own passage in Pinnock above as the view of the court, he concluded, surely with an edge of irony, that:
Save where we feel that Strasbourg has misunderstood or misappreciated our common law system, we UK judges have, I suspect, sometimes been too ready to assume that a decision, even a single decision of a section of that court, represents the law according to Strasbourg, and accordingly to follow it. That approach is attributable to our common law attitude to precedent… I think that we are beginning to see that the traditional common law approach may not be appropriate, at least to the extent that we should be more ready not to follow Strasbourg chamber decisions.
Such comments by Lord Neuberger not only pre-empted the Conservative Party’s legislative proposals to remove the authority of the ‘Strasbourg court’(see p 63), but revealed them as nugatory in practice and merely ideological in effect. Interestingly in a subsequent lecture at Bangor University in October 2014, Lord Neuberger also suggested the benefits of a written constitution, which also chimed in with Conservative Party proposals.
Mistakes by the Supreme Court
The following tautology may be applied in relation to the Supreme Court: as the ultimate authority on the law, it says what the law is; and as what it says is the law, it cannot be wrong. However, what happens if the Supreme Court subsequently believes that what it said the law was, was wrong? On rare occasions decisions of the House of Lords have almost immediately been recognised to have been wrong. Just such a situation arose in Anderton v Ryan (1985), when the House of Lords interpreted the Criminal Attempts Act 1981 in such a way as to virtually make the Act ineffective. Following much academic criticism, the House of Lords acknowledged its error and in R v Shivpuri (1986), after only one year, it overruled Anderton v Ryan. The leading judgment in Shivpuri was delivered by Lord Bridge, as was only fitting, as he had also been a member of the erroneous majority in Anderton v Ryan. As he stated:
I have made clear my own conviction, which as a party to the decision… I am the readier to express, that the decision was wrong. What then is to be done? If the case is indistinguishable, the application of the strict doctrine of precedent would require that the present appeal be allowed. Is it permissible to depart from precedent under the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 notwithstanding the especial need for certainty in the criminal law? The following considerations lead me to answer that question affirmatively. First, I am undeterred by the consideration that the decision in Anderton v Ryan was so recent. The 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 (emphasis added).
The foregoing was done in line with the operation of the doctrine of precedent within the English legal system, as a result of which only the House of Lords could overrule a previous decision of that court. However, it was fortunate that in Shivpuri, the House had an early opportunity to reconsider its previous exposition of the law. The question arises as to what would happen if an earlier legal determination by the House of Lords/Supreme Court were subsequently to be generally accepted as wrong. In strict terms, as all other courts are bound by the rules of precedent to follow the House of Lords/Supreme Court, no change could be considered until a similar case returned to the House of Lords/Supreme Court. Just such a situation arose in relation to the issue of provocation as a defence to a charge of murder. However, before considering the details of the situation it is necessary to explain the role of the Privy Council in regard to the doctrine of precedent.
The Judicial Committee of the Privy Council (see 6.11), although essentially made up of the Justices of the Supreme Court, is not actually a part of the English legal system. Consequently its decisions do not fit within the hierarchical structure of the English system and are not binding on any English court, although its decisions are of extremely strong persuasive authority. On the other hand, it has been previously accepted that decisions of the House of Lords are nonetheless to be followed by the Privy Council. Thus in Tai Hing Ltd v Liu Chong Hing Bank (1986) the Committee (per Lord Scarman, p 14) stated that:
Once it is accepted… that the applicable law is English, their Lordships of the Judicial Committee will follow a House of Lords’ decision which covers the point in issue. The Judicial Committee is not the final judicial authority for the determination of English law. That is the responsibility of the House of Lords in its judicial capacity. Though the Judicial Committee enjoys a greater freedom from the binding effect of precedent than does the House of Lords, it is in no position on a question of English law to invoke the Practice Statement pursuant to which the House has assumed the power to depart in certain circumstances from a previous decision of the House.
Thus the traditional situation was that the House of Lords was supreme and in matters of English law it bound the Privy Council, which was never any more than of persuasive authority in relation to English law. However, this traditional view has been radically undermined by a series of cases relating to the interpretation of provocation as a defence under s 3 of the Homicide Act 1957.
Section 3 of the Homicide Act 1957 provides that a jury must decide two issues in assessing whether a defendant can make use of the defence of provocation:
- (i) whether the killer lost self-control in their reaction to words or acts; and
- (ii) whether a ‘reasonable man’ would have acted in that way.
Difference of opinion, not to say controversy, has arisen in relation to the second element of his test. In the House of Lords’ decision in R v Camplin (1978), Lord Diplock stated that when considering whether the defendant’s reaction to provocation had been that of a reasonable man, the jury should have regard to the fact that the reasonable man referred to:
was a person having the power of self-control, to be expected of an ordinary person of the sex and age of the accused, but in other aspects sharing such of the accused’s characteristics as they think would affect the gravity of the provocation to him (emphasis added).
However, the actual meaning of the words italicised in the above quotation has proved fertile ground for legal debate. Thus in Luc Thiet Thuan v R (1997), in the Privy Council the majority held that the standard of self-control to be applied was that of the ordinary person, not that of a brain-damaged person, as was involved in the case. In the minority, Lord Steyn suggested that the particular characteristics possessed by the defendant must be attributed to the reasonable man.
In two later decisions, the Court of Appeal declined to follow the majority in Luc Thiet Thuan, holding that, as the majority decision in that case was in conflict with decisions of the Court of Appeal, the doctrine of precedent required the Court of Appeal to follow its own decisions (see R v Campbell (1997) and R v Parker (1997)). However, in R v Smith (Morgan) (2001) a majority of the House of Lords held that Luc Thiet Thuan had been wrongly decided and by a majority of 3:2 held that juries could take account of the personal characteristics of defendants that made them particularly susceptible to losing self-control. As with Anderton v Ryan, this decision met with concentrated academic attack and it became generally, if certainly not universally, accepted that the House of Lords had got it wrong. The problem, however, was that no immediate opportunity presented itself for the House of Lords to reverse the decision in Morgan Smith. Instead, the Law Lords elected to make use of an appeal to the Privy Council in a case from Jersey, which has its own legal jurisdiction, but with a murder law based on English law. The case was Attorney General for Jersey v Holley (2005).
More in recognition of the potential consequences of their actions than the importance of the case per se, nine of the total of 12 Law Lords sat on the Privy Council hearing and ruled. As Lord Nicholls, in the majority, stated (para 1):
The decision of the House in Morgan Smith is in direct conflict with the decision of their Lordships’ board in Luc Thiet Thuan v the Queen. And the reasoning of the majority in the Morgan Smith case is not easy to reconcile with the reasoning of the House of Lords in R v Camplin… This appeal, being heard by an enlarged board of nine members, is concerned to resolve this conflict and clarify definitively the present state of English law, and hence Jersey law, on this important subject (emphasis added).
Such an intention was also accepted by the minority, who acknowledged the effect of the majority decision was to clarify the state of English law in relation to the partial defence of provocation. The conclusion, by a majority of six to three, was that the Morgan Smith case had been wrongly decided. Thus the Privy Council had made its decision; what remained was to consider the impact of that ruling in relation to the operation of the doctrine of precedent within the English court structure. The opportunity to do so came when the joined appeals in R v James and R v Karimi came before the Court of Appeal in January 2006.
The issue before the court was simple: was the Court of Appeal bound to follow the House of Lords’ decision in Morgan Smith, or was the decision of the Privy Council in Holley to be preferred? Once again, a strengthened bench of the Court of Appeal, made up of five rather than the usual three members, indicated the importance of the case. In reaching its decision, the Court of Appeal was extremely sensitive to the manner in which Holley had been used as a device for subverting the traditional operation of the doctrine of precedent, but in an exercise of judicial realism it both raised, and dealt with, the central issues relating to precedent; thus per Lord Phillips, Chief Justice, paras 41–42:
it is not this court, but the Lords of Appeal in Ordinary who have altered the established approach to precedent. There are possible constitutional issues in postulating that a Board of the Privy Council, however numerous or distinguished, is in a position on an appeal from Jersey to displace and replace a decision of the Appellate Committee on an issue of English law. Our principles in relation to precedent are, however, common law principles. Putting on one side the position of the European Court of Justice, the Lords of Appeal in Ordinary have never hitherto accepted that any other tribunal could overrule a decision of the Appellate Committee. Uniquely a majority of the Law Lords have on this occasion decided that they could do so and have done so in their capacity as members of the Judicial Committee of the Privy Council. We do not consider that it is for this court to rule that it was beyond their powers to alter the common law rules of precedent in this way.
The rule that this court must always follow a decision of the House of Lords and, indeed, one of its own decisions rather than a decision of the Privy Council is one that was established at a time when no tribunal other than the House of Lords itself could rule that a previous decision of the House of Lords was no longer good law. Once one postulates that there are circumstances in which a decision of the Judicial Committee of the Privy Council can take precedence over a decision of the House of Lords, it seems to us that this court must be bound in those circumstances to prefer the decision of the Privy Council to the prior decision of the House of Lords. That, so it seems to us, is the position that has been reached in the case of these appeals (emphasis added).
As a consequence of the preceding cases it is now apparent that the Privy Council can in exceptional circumstances overrule precedents of the House of Lords. According to the Court of Appeal in James, those exceptional circumstances arose as a result of the following attributes in the case:
- All nine of the Lords of Appeal in Ordinary sitting in Holley agreed in the course of their judgments that the result reached by the majority clarified definitively English law on the issue in question.
- The majority in Holley constituted half the Appellate Committee of the House of Lords. We do not know whether there would have been agreement that the result was definitive had the members of the Board divided five/four.
- In the circumstances, the result of any appeal on the issue to the House of Lords is a foregone conclusion.
It might not be over-cynical to suggest that such ‘exceptional’ circumstances will occur as and when the Justices of the Supreme Court: (a) agree with advocates who in a case make such a suggestion, and (b) deem it desirable to change the law in such a case. It certainly cannot be denied that the decisions in Holley and James fundamentally alter the previous understanding of the way in which the doctrine of precedent operates within the English legal system and affords the Justices of the Supreme Court a second way of altering their previous decisions in addition to the Practice Statement of 1966.
The Court of Appeal
In civil cases, the Court of Appeal is generally bound by previous decisions of the House of Lords. Although the Court of Appeal, notably under the aegis of Lord Denning, attempted on a number of occasions to escape from the constraints of stare decisis, the House of Lords repeatedly reasserted the binding nature of its decisions on the Court of Appeal. The House of Lords emphasised the balance between the need for certainty in the law against the need to permit scope for the law to develop, and in so doing, it asserted its function, as the court of last resort at the head of the hierarchy, to undertake necessary reform. The relationship between and functions of the House of Lords and the Court of Appeal was clearly stated by Lord Diplock in Davis v Johnson [1978] 1 All ER 1132 at 1137–38:
In an appellate court of last resort a balance must be struck between the need on the one side for legal certainty resulting from the binding effect of previous decisions and on the other side the avoidance of undue restriction on the proper development of law. In the case of an intermediate appellate court, however, the second desideratum can be taken care of by an appeal to a superior court, if reasonable means of access to it are available; while the risk to the first desideratum, legal certainty, if the court is not bound by its own previous decisions grows ever greater with increasing membership and the number of three-judge divisions in which it sits… So the balance does not lie in the same place as the court of last resort.
The decision to be taken by the Court of Appeal when faced with conflicting precedents from the Supreme Court and the Privy Council has been considered previously. The more general relationship between the Court of Appeal and the Privy Council was clarified by Lord Neuberger MR in Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd (2011). In explaining the situation of the Court of Appeal he stated:
We should not follow the Privy Council decision… in preference to decisions of this court, unless there are domestic authorities which show that the decisions of this court were per incuriam, or at least of doubtful reliability. Save where there are powerful reasons to the contrary, the Court of Appeal should follow its own previous decisions… It is true that there is a powerful subsequent decision of the Privy Council which goes the other way, but that of itself is not enough to justify departing from the earlier decisions of this court.… I do not suggest that it would always be wrong for this court to refuse to follow a decision of the Privy Council in preference to one of its own previous decisions, but the general rule is that we follow our previous decisions, leaving it to the Supreme Court to overrule those decisions if it is appropriate to do so. Two recent cases where this court preferred to follow a decision of the Privy Council rather than an earlier domestic decision which would normally be regarded as binding (in each case a decision of the House of Lords) are R v James and Abou-Rahmah v Abacha. In each case, the decision was justified, based as it was on the proposition that it was a foregone conclusion that, if the case had gone to the House of Lords, they would have followed the Privy Council decision (paras 72–74, emphasis added).
However, as has been seen in 2.5.1.2 above, the Court of Appeal in Mendoza v Ghaidan (2002) used s 4 of the HRA to extend the rights of same-sex partners to inherit a statutory tenancy under the Rent Act 1977. In so doing, it extended the earlier decision of the House of Lords in Fitzpatrick v Sterling Housing Association Ltd (1999), which had been decided before the HRA came into force. Thus, it can be seen that the HRA gives the Court of Appeal latitude to effectively overrule decisions of the House of Lords which were decided before the HRA came into effect and in conflict with the ECHR.
See also the reasoning of the Court of Appeal in D v East Berkshire Community NHS Trust (2004) in which the Court of Appeal held that the decision of the House of Lords in X (Minors) v Bedfordshire County Council (1995) could not be maintained after the introduction of the Human Rights Act 1998, as that Act had undermined the policy consideration that had largely dictated the House of Lords’ decision. That approach was directly approved in Kay v London Borough of Lambeth (2005) (see below).
Similarly, decisions of the ECJ, which effectively overrule previous decisions of the House of Lords, will also be followed by the Court of Appeal.
The Court of Appeal generally is also bound by its own previous decisions in civil cases. There are, however, a number of exceptions to this general rule. Lord Greene MR listed these exceptions in Young v Bristol Aeroplane Co Ltd (1944):
- Where there is a conflict between two previous decisions of the Court of Appeal. In this situation, the later court must decide which decision to follow and, as a corollary, which to overrule. Such a situation arose in Tiverton Estates Ltd v Wearwell Ltd (1974). In that case, which dealt with the meaning of s 40 of the Law of Property Act 1925 (subsequently repealed), the court elected to follow older precedents rather than follow the inconsistent decision in Law v Jones (1974). The decision in Tiverton Estates Ltd v Wearwell Ltd can be justified as the mere working out of the rules of precedent. As Law v Jones must have been made in ignorance of, or based on a failure to properly understand, the earlier decisions (see per incuriam, below), it could have been ignored on that ground alone. However, this particular exception is wider than that, in that it allows the current Court of Appeal to choose between the previous conflicting authorities. Hence, the Court of Appeal could have decided to follow Law v Jones if it preferred.
- Where a previous decision of the Court of Appeal has been overruled, either expressly or impliedly, by the House of Lords. An express overruling would obviously occur where the House of Lords actually considered the Court of Appeal precedent, but it is equally possible that the ratio in a precedent from the Court of Appeal could be overruled without the actual case being cited and considered. In this situation, the Court of Appeal, in line with the normal rules of precedent, is required to follow the decision of the House of Lords. Thus, in Family Housing Association v Jones (1990), the Court of Appeal felt obliged to ignore its own precedents on the distinction between a licence and a tenancy in property law where, although they had not been expressly overruled, they were implicitly in conflict with later decisions of the House of Lords in AG Securities Ltd v Vaughan (1988) and Street v Mountford (1985).
- Where the previous decision was given per incuriam or, in other words, that previous decision was taken in ignorance of some authority, either statutory or case law, that would have led to a different conclusion. In this situation, the later court can ignore the previous decision in question. It is important to emphasise, however, that the missing authority must be such that it must have led to a different conclusion; the mere possibility is not enough. There are so many case authorities that it is simply not possible to cite all of them. However, the essential authorities, those that lead to a particular decision, must be considered. It is the absence of any such of these authorities that renders a decision per incuriam. As will be appreciated, the instances of decisions being ignored on the basis of a ruling of per incuriam are ‘of the rarest occurrence’ (Morelle Ltd v Wakeling (1955)). One example, however, may be seen in Williams v Fawcett (1985), in which the Court of Appeal did find such exceptional circumstances as would permit it to treat its previous decisions as having been made per incuriam. The facts of the case involved an appeal against a decision to commit a person to prison for contempt of court in breaching a non-molestation order. Previous decisions of the Court of Appeal had held that any such committal order had to be signed by the court officer who issued it. However, the present court found that the law as stated in the Criminal Court Rules did not allow for appeal simply on the grounds that the order was not signed by a proper officer as long as the seal of the court was applied. Of crucial importance among the circumstances that led to the finding of per incuriam in relation to the earlier decisions was the fact that, given the expense involved, the case would be unlikely to go to the House of Lords for its final determination of the legal situation. It should be noted that this justification can be seen to fit with the previous quotation from Lord Diplock in Davis v Johnson, to the extent that the Court of Appeal decided that, in this instance, there was no ‘reasonable means of access to’ the court of last resort. A similar justification for another finding of per incuriam can be found in Rickards v Rickards (1989), in which the Court of Appeal held that its previous decision in Podberry v Peak (1981) had misunderstood and wrongly applied the House of Lords’ decision in Laine v Eskdale (1891). In overruling Podberry, the court held that it had the power to hear an appeal against a refusal to extend the time limit within which a person could appeal against the award of a lump sum in a clean-break divorce settlement. The court once again held that as the issue involved was so serious, and as it was unlikely to go to the House of Lords, then the Court of Appeal should itself remedy the earlier misunderstanding stated in its own previous decision. An interesting example of the principle can be found in R (on the Application of W) v Lambeth LBC (2002), in which the Court of Appeal overruled its earlier judgment of only six months previously in R (A) v Lambeth LBC (2001) as regards the interpretation and effect of s 17 of the Children Act 1989. The matter of interest is not so much that the later court held that the earlier one would have reached a different conclusion had the law been fully explained to it, but that one of the judges in the unanimous decision in R (W) v Lambeth LBC was Laws LJ, who had delivered a minority judgment to the same effect in R (A) v Lambeth LBC.
There used to be a further exception to the general rule that the Court of Appeal was bound by its own earlier decisions and that was in relation to an interlocutory or interim decision made by a panel of only two judges (Boys v Chaplin (1968)); even interim decisions by a full panel of three judges were still binding. However, as a consequence of the Woolf reforms and under the Civil Procedure Rules 1998, the distinction between interlocutory and final appeals was removed. Consequently, it was held in Cave v Robinson, Jarvis and Rolf (2002) that the decision in Boys v Chaplin was no longer sustainable, although the Court of Appeal stated that it might be possible to adjust the reasoning in Boys v Chaplin where the later court was satisfied that the earlier decision of the two-person court was ‘manifestly wrong’.
Although on the basis of R v Spencer (1985) it would appear that there is no difference in principle between the operation of the doctrine of stare decisis between the criminal and civil divisions of the Court of Appeal, it is generally accepted that in practice, precedent is not followed as strictly in the former as it is in the latter. Courts in the Criminal Division are not bound to follow their own previous decisions that they subsequently consider to have been based on either a misunderstanding or a misapplication of the law. The reason for this is that the criminal courts deal with matters involving individual liberty and therefore require greater discretion to prevent injustice.
The European Courts and domestic precedent
The foregoing list deals with all the exceptions set out in Young v Bristol Aeroplane Co Ltd, but the following additional exceptions to the rule have become apparent since that decision:
- There is also the possibility/likelihood that, as a consequence of s 3 of the European Communities Act 1972, the Court of Appeal can ignore a previous decision of its own which is inconsistent with EC law or with a later decision of the ECJ. As s 3 requires courts either to refer cases dealing with Community law to the ECJ, or alternatively to decide the cases themselves in the light of the previous decision of the ECJ, it would appear that the section gives the Appeal Court grounds for ignoring any of its previous decisions which conflict with subsequent decisions of the ECJ. This effectively fits the ECJ into the traditional hierarchical structure of precedence as the court of last resort in relation to Community law matters.
- It has taken some time for the precise effect of the HRA 1998 to be seen, but as has been explained above at 2.5, s 2 of the Act requires all courts and tribunals to take into account any judgment, decision, declaration or advisory opinion of the ECtHR. As previously the decisions of the European Court of Human Rights were not directly binding on the UK courts, this means that the decisions and jurisprudence of the ECtHR will affect the way in which the UK courts reach decisions in cases involving the rights provided under the European Convention.
In Director General of Fair Trading v Proprietary Association of Great Britain (No 2) (2001) (see below, 12.2.3), the Court of Appeal felt able to refine the decision of the House of Lords in R v Gough (1993) to bring it into line with ECtHR jurisprudence, and it is almost without doubt that it will overrule its own decisions where those are in conflict with the provisions of the ECHR. The issue of the effect of s 2 of the HRA in relation to the domestic rules of precedent was considered extensively in Lambeth London Borough Council v Kay; Price v Leeds City Council (2006). These combined appeals, in essence, related to the effectiveness of orders to take possession of land owned by public authorities but occupied by the appellants, without right under domestic law. The argument that the appellants could rely on Art 8 of the ECHR was rejected by all the courts from the first instance to the House of Lords. In reaching its decision, the House of Lords, by a majority, held that it was not necessary for a local authority to prove that domestic law complied with Art 8. Courts could and should proceed on the assumption that domestic law was compatible with Art 8. The onus was on the occupier to show that there were highly exceptional circumstances to support their case. Much was made of the House of Lords’ decision in these cases, especially as Kay related to the rights of travellers to occupy land. However, the cases also raised fundamental issues relating to the operation of precedent within the court hierarchy, with specific relevance to the authority of the ECtHR within the domestic structure.
In the Kay case, the Court of Appeal had held that it was bound by the decision of the House of Lords in Harrow London Borough Council v Qazi (2004), but it also expressed the opinion that the Qazi decision was incompatible with the later decision of the ECtHR in Connors v United Kingdom (2004). However, as neither the precise effect of s 2 of the Human Rights Act, nor the hierarchical authority of competing decisions of the ECtHR and the House of Lords, had previously received a definitive consideration in the English courts, the Court of Appeal granted leave to appeal to the House of Lords on the issue of precedent. On that issue Lord Bingham delivered the leading judgment, with which the other members of the court concurred. As Lord Bingham explained, there is a distinct difference in the consequences of decisions of the European Court of Justice and those of the European Court of Human Rights: the former are binding, the latter are not. As Lord Bingham put it (para 28):
The mandatory duty imposed on domestic courts by section 2 of the 1998 Act is to take into account any judgment of the Strasbourg Court and any opinion of the Commission. Thus they are not strictly required to follow Strasbourg rulings, as they are bound by section 3(1) of the European Communities Act 1972 and as they are bound by the rulings of superior courts in the domestic curial hierarchy.
As regards the effect of decisions of the ECtHR within the English legal system of precedent, Lord Bingham addressed the fundamental issue of authority head-on (para 40):
Reference has already been made to the duty imposed on United Kingdom courts to take Strasbourg judgments and opinions into account and to the unlawfulness of courts, as public authorities, acting incompatibly with Convention rights. The questions accordingly arise whether our domestic rules of precedent are, or should be, modified; whether a court which would ordinarily be bound to follow the decision of another court higher in the domestic curial hierarchy is, or should be, no longer bound to follow that decision if it appears to be inconsistent with a later ruling of the Court in Strasbourg.
His conclusion, with which the other members of the judicial panel concurred, was equally forthright in maintaining the integrity of the existing structure of binding precedent within the domestic hierarchical structure (para 43):
… certainty is best achieved by adhering, even in the Convention context, to our rules of precedent. It will of course be the duty of judges to review Convention arguments addressed to them, and if they consider a binding precedent to be, or possibly to be, inconsistent with Strasbourg authority, they may express their views and give leave to appeal, as the Court of Appeal did here. Leap-frog appeals may be appropriate. In this way, in my opinion, they discharge their duty under the 1998 Act. But they should follow the binding precedent…
However, Lord Bingham did allow for one exceptional set of circumstances. As previously mentioned, he and the other members of the House of Lords specifically acknowledged that in such circumstances as occurred in D v East Berkshire Community NHS Trust, where the previous authority had been set without reference to the Human Rights Act, the Court of Appeal would be at liberty to avoid following the previous decision of the House of Lords.
Subsequently, in its judgment in McCann v United Kingdom (2008), the ECtHR disagreed with the majority of the House of Lords in Kay (2005), holding that Connors (2004) was not confined to cases involving the eviction of travellers, nor was it limited to cases where the applicant was seeking to challenge the law itself rather than its application or procedure in a particular case. However, in Doherty v Birmingham City Council the House of Lords decided that the basic rule in this area remained as laid down by the majority in Qazi v Harrow (2004) and reaffirmed by the majority in Kay. Although in McCann the European Court of Human Rights had endorsed the reasoning of the minority in Kay, the House of Lords in Doherty decided that the approach of the ECtHR could best be implemented by applying and developing the reasoning of the majority, rather than the minority, view expressly supported by the ECtHR.
In September 2010, when the Kay case reached the ECtHR, that court followed its own reasoning in McCann and reasserted its preference for the minority opinions in the House of Lords’ judgments in Kay. The ECtHR judgment in Kay was handed down while the House of Lords was hearing another case relating to the same issue in Manchester City Council v Pinnock. The ECtHR’s Kay decision was actually handed down after the oral hearing of the Pinnock case and the House of Lords asked for written submissions on its effect. The judgment of the House of Lords was delivered by Lord Neuberger, who was still sitting as a member of that court before taking up his position as Master of the Rolls and represents a falling in line, if ever so slightly hesitantly, with the jurisprudence of the ECtHR:
48. This Court is not bound to follow every decision of the ECtHR. Not only would it be impractical to do so: it would sometimes be inappropriate, as it would destroy the ability of the Court to engage in the constructive dialogue with the ECtHR which is of value to the development of Convention law. Of course, we should usually follow a clear and constant line of decisions by the ECtHR. But we are not actually bound to do so or (in theory, at least) to follow a decision of the Grand Chamber. As Lord Mance pointed out in Doherty v Birmingham [2009] 1 AC 367, para 126, section 2 of the HRA requires our courts to ‘take into account’ ECtHR decisions, not necessarily to follow them. Where, however, there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this Court not to follow that line.
49. In the present case there is no question of the jurisprudence of the ECtHR failing to take into account some principle or cutting across our domestic substantive or procedural law in some fundamental way. That is clear from the minority opinions in Harrow v Qazi [2004] 1 AC 983 and Kay v Lambeth [2006] 2 AC 465, and also from the fact that our domestic law was already moving in the direction of the European jurisprudence in Doherty v Birmingham [2009] 1 AC 367. Even before the decision in Kay v UK (App no 37341/06), we would, in any event, have been of the opinion that this Court should now accept and apply the minority view of the House of Lords in those cases. In the light of Kay , that is clearly the right conclusion.
Therefore, if our law is to be compatible with Art 8, where a court is asked to make an order for possession of a person’s home at the suit of a local authority, the court must have the power to assess the proportionality of making the order, and, in making that assessment, to resolve any relevant dispute of fact (emphasis added).
High Court Divisional Courts
The Divisional Courts, each located within the three divisions of the High Court, hear appeals from courts and tribunals below them in the hierarchy. They are bound by the doctrine of stare decisis in the normal way and must follow decisions of Supreme Court and the Court of Appeal. In turn, they bind the courts below them in the hierarchy, including those dealing with ordinary High Court cases. The Divisional Courts are also normally bound by their own previous decisions, although in civil cases, they may make use of the exceptions open to the Court of Appeal in Young v Bristol Aeroplane Co Ltd (1944) and, in criminal appeal cases and cases relating to judicial review, the Queen’s Bench Divisional Court may refuse to follow its own earlier decisions where it feels the decision to have been made wrongly.
In R v Greater Manchester Coroner ex p Tal (1984), the Divisional Court held that it had supervisory jurisdiction in relation to coroners’ courts, although this was contrary to its previous decision in R v Surrey Coroner ex p Campbell (1982). In so doing, the court stated that its power to depart from its previous decisions was conferred under the Senior Courts Act 1981, but it also held, on the basis of the House of Lords’ decision in O’Reilly v Mackman (1982), that Campbell had wrongly applied Anisminic v Foreign Compensation Commission (1969). Tal, therefore, may also be seen as an example of the normal exceptions in Young v Bristol Aeroplane Co Ltd.
In R v Stafford Justices ex p Commissioners of Customs and Excise (1990), the Queen’s Bench Divisional Court held that its previous decision in R v Ealing Justices ex p Dixon (1990) had been wrongly decided. Both cases related to the rights to undertake prosecutions where individuals had been charged, as required under s 37 of the Police and Criminal Evidence Act (PACE) 1984, by the police. Contrary to the Ealing Justices case, the Divisional Court in the Stafford Justices case held that merely being charged by the police did not require that the police should pursue the prosecution and that Customs and Excise could undertake the prosecution. In a similar case, although this time relating to the powers of the Inland Revenue to undertake prosecutions on indictment without the consent of the Attorney General, the Divisional Court approved the Stafford Justices decision and stated clearly that the Ealing Justices case should no longer be followed (R v Criminal Cases Review Commission ex p Hunt (2001)).
The House of Lords implicitly approved the Divisional Court’s power to overrule its own previous decisions in DPP v Butterworth (1994). This case was the culmination of a number of cases relating to the refusal to provide a breath specimen contrary to s 7(6) of the Road Traffic Act 1988. In DPP v Corcoran (1993), a Divisional Court held that where a person was not informed for which of two potential offences he was being required to provide a specimen, any prosecution was undermined for duplicity. However, in DPP v Shaw (1993), a differently constituted Divisional Court subsequently held that Corcoran was wrongly decided and was an example of a per incuriam decision. Shaw rather than Corcoran was followed in the later Divisional Court decision in DPP v Butterworth. That decision was expressly approved by the House of Lords.
High Court
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, but such decisions are not binding on other High Court judges, although they are of strong persuasive authority and tend to be followed in practice. The simple reason for this is that different judgments would lead to confusion in relation to exactly how the particular law in question was to be understood. It is possible, however, for High Court judges to disagree and for them to reach different conclusions as to the law in a particular area. The question then becomes, how is a later High Court judge to select which precedent to follow? It is usually accepted, although it is not a rule of law, that where the later decision has actually considered the previous one and has provided cause for not following it, then that is the judgment which later High Court judges should follow (Colchester Estates v Carlton Industries plc (1984)).
Conflicting decisions at the level of the High Court can, of course, be authoritatively decided by reference upwards to the Court of Appeal and then, if necessary, to the Supreme Court, but when the cost of such appeals is borne in mind, it is apparent why, even on economic grounds alone, it is important for High Court judges not to treat their discretion as a licence to destabilise the law in a given area.
In relation to conflicting judgments at the level of the Court of Appeal, the High Court judge is required to follow the later decision.
Crown Courts cannot create precedent and their decisions can never amount to more than persuasive authority.
County Courts and magistrates’ courts do not create precedents.
