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Judicial precedent

Do the Supreme

Court make law?

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Judicial precedentPowers of the Supreme Court to change

previous precedents

•Stare decisis: As with all courts the Supreme Court (SC)

believes that certainty in the law is very important.

•Supreme Court Tool box: The SC can use all the tools of

precedent that other lower courts can, i.e. overruling,

reversing, distinguishing.

•Overruling their own decisions: The SC is the ONLY

court that can change any precedent they have made in

the past.

•The Practice Statement 1966: This speech by the Head

of the judiciary allows the SC to overrule their own

decisions.

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Judicial precedentBefore the Practice Statement 1966

•The House of Lords decided before 1966 that they would not overrule their own decisions.

•This was decided in the case on London Street Train ways v London County Council in 1898 .

•This was because certainty in law was considered more important than the personal hardship of a small number of individuals.

•Before 1966 the House of Lords had very limited law making abilities unless the case formed an original precedent (first of its kind).

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Judicial precedentThe Practice Statement 1966

•The House Lords decided to give themselves the power to overrule their own past decisions.

•BUT only when it is RIGHT TO DO SO.

•Right to do so isn't defined.

•Advantage: Allows the SC to develop the law to the changing needs of society.

•Risk: Too much flexibility means society cant rely on the law when they make decisions, eg imagine changing the speed limit on a road every 10 minutes and the problems this could cause.

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Judicial precedent

Stare Decisis still important Law should

evolve slowly – less riskyPrecedent

must be flexible or

law doesn't meet the needs of society

Law can only be changed if it benefits the

majority of society

Criminal law affects people’s liberty. So don't change unless

have to

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Judicial precedentDoes the Supreme Court make Law?

•Yes, in two ways.

•Original Precedent: As problems arise in society the SC has to deal with them through a case. The Ratio of this case is a new law, eg Donoghue v Stevenson 1932

•Overruling their own decisions using the Practice statement 1966. But only when it is “right to do so”.

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Judicial precedentMaking law through Original

precedent - examples

1. To protect the rights of the unborn child, RE S (High Court judgment)

2. To allow minors contraceptive treatment without parental consent, Gillick.

3. To develop the law in the light of changing social and cultural developments, e.g. R v R abolished the 250 year old immunity for husbands being charged with rape of their wife.

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Judicial precedentSo when is it Right to do so? – Use of

the Practice Statement1. A Change in social conditions in society2. To reflect change in economic climate3. To correct errors / restore certainty4. To develop the law 5. To correct their previous misinterpretation of a

statute6. To develop the law in the light of changing

social and cultural developments.

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Judicial precedentSo when is it Right to do so? -

Example1. Change in social conditions in society

British Railways Board v Herrington (1972) when they altered the test for the duty of care (in tort) owed to child trespassers to reflect change in social conditions.

A test of 'common humanity' - doing all that a humane person would have done to protect the safety of the child trespasser.

Overruling their previous decision in Addie v Dumbreck (1920) which held the test was that of injuries caused 'intentionally or recklessly'.

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Judicial precedentSo when is it Right to do so? -

Example5. To correct their previous misinterpretation of a statute

R v Shivpuri 1985: Departed and overruled Anderton v Ryan by

Facts: D was arrested entering the country, carrying a package which he believed contained either heroin or cannabis, but was in fact harmless ground dried vegetable. D was charged with attempting avoid import restrictions; smuggling.

Ratio/Held: Accepting that previous law had been incorrectly applied, concerning the Criminal Attempts Act 1981, the HL departed from its previous decision and said an attempted crime that was impossible could still be a criminal offence as per S1(2). D G.

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Judicial precedentSo when isn't it Right to do so? -

Examples1. A special need for certainty in criminal law – it took 20

years before the House Of Lords used the Practice Statement in criminal law (Shivpuri)

2. To reflect change in social conditions in society.

As seen in Jones v Secretary of State for Social Services (1972) where despite 4 out of the 7 Lords agreeing that the previous decision in Re Dowling (1967) was wrong, they decided not to overrule the decision in order to retain certainty in case law.

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Judicial precedentDo judges make new laws? – A few

theories and views1. Where judges feel parliament should decide on a key social

issue they may refuse to make a new law, C v DPP2. Literal rule judges tend to believe more fervently in the

sovereignty of parliament even if it results in absurd results, e.g. Fisher v Bell

3. Declaratory theory of precedent – Some judges believe the law has always existed, judges just declare the law in cases. This means judges don't make law.

4. Precedent has retrospective effect – Some judges believe that new laws should not be made using precedent as it should then be applied to all past cases.

5. Precedent has prospective effect – Most judges believe precedents only apply from the date they are made so this allows changes to the law and make new laws.

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Judicial precedentDo judges make new laws -

Conclusion

Parliament is democratically elected, so it would seem

that its members are the best people to make laws for

the country.

However, due to lack of parliamentary time, it may be

important for some laws to be made by judges. For

example the rise of super injunctions or the urgency of

the Re S case.