Judicial precedent 11Judicial precedent
As already mentioned, the doctrine of judicial precedent holds that judges in lower courts
are absolutely bound to follow decisions previously made in higher courts.
The effect of the Act
In Chapter 17 the court structure is examined in more depth. (See Figures 17.1, 17.2 and
17.3.) For the purposes of understanding the system of precedent, we need only to know
that the courts are arranged in a hierarchical structure and that there are five levels in the
hierarchy.
The Supreme Court
The Supreme Court is the highest court in Great Britain and Northern Ireland. It replaced
the House of Lords on 1 October 2009, when the 11 Law Lords who used to sit in the House
of Lords became the first Supreme Court justices. The court now has a full complement of
12 justices. The Supreme Court justices, five of whom sit in most cases, are not bound by
any previous precedents. Furthermore, their decisions are binding on all courts beneath
them. In practice, the Supreme Court justices do tend to follow their own previous decisions
unless there is a good reason not to. Supreme Court justices also hear appeals from some
Commonwealth countries. When they sit in this capacity, the justices are known as the
Privy Council. Technically, decisions of the Privy Council are not binding on English courts,
but in practice they are usually regarded as having the same authority as Supreme Court
decisions. In some particularly important cases seven, or even nine, Supreme Court justices
sit, rather than the usual number of five. Seven Law Lords sat in PeppervHart (1993), the
effect of which we have already considered. In 2008, nine Law Lords sat in a case to decide
whether foreign nationals suspected of terrorism could be held in prison without trial.
The Supreme Court has no power to overturn a statute.
The Court of Appeal
The Court of Appeal is the next rung down the ladder. Its decisions are binding on all lower
courts. They are also binding on future sittings of the Court of Appeal. In Youngv Bristol
Aeroplane Co Ltd (1944)it was decided that the Court of Appeal could refuse to follow its
own previous decisions in only three circumstances:
n First, where there were two conflicting earlier Court of Appeal decisions, it could decide
which one to follow and which one to overrule.
n Second, if a previous Court of Appeal decision had later been overruled by the House of
Lords (now the Supreme Court), the Court of Appeal should not follow it.
n Third, a previous Court of Appeal decision should not be followed if it was decided
through lack of care, ignoring some statute or other higher-ranking authority such as a
previously decided House of Lords (now the Supreme Court) case.
Although the principles set out apply to both the Civil and Criminal Divisions of the Court
of Appeal, it is generally recognised that the Criminal Division has slightly wider powers
to depart from its own previous decisions. It can do so where justice would otherwise be
denied to an appellant.
In terms of precedent, the Court of Appeal is the most important court. The Supreme
Court hears only about 100 cases a year. The Court of Appeal hears several thousand.