‘The doctrine of precedent is essential to the English common law system; however the development of the Bristol Aeroplane exceptions is making a mockery of the principle of stare decisis’.

Critically discuss this statement.

Students should first appreciate that the doctrine of stare decisis means and the importance behind the concept. Consider the justifications for the doctrine’s existence – e.g. consistency, understanding, clarity etc. As discussed in relation to the essay question for Chapter 2, a student must choose a side. In this question a student may argue that the Aeroplane exceptions are indeed making a mockery of the principle. They may do so, however, in part or in full. Students should also appreciate what the exceptions in Bristol Aeroplane are and how far they reach.

1. Students should appreciate that the principle in Bristol Aeroplane applies only to decisions in the Court of Appeal and High Court and are quite narrow in their application.
2. Further, the exceptions themselves are not contrary to the doctrine of precedent given that they continue to reflect the operation of precedent (e.g. the second exception is that the previous Court of Appeal decision is contrary to a Supreme Court decision).
3. Students could discuss the extension of the principle in Bristol Aeroplane in criminal cases where the liberty of the defendant is also a factor to consider – perhaps it’s a good thing that stare decisis is put to one side where the defendant’s liberty is at stake.
4. Students can note that Bristol Aeroplane does not apply to the Supreme Court (nor did it to the House of Lords) yet, their Lordships may depart from a previous decision where it appears right to do so. If one were to argue that Bristol Aeroplane makes a mockery of the doctrine, then surely this power itself makes a mockery also.

As always, students should offer a rationalised conclusion summing up their overall argument.

The Supreme Court has just released a brand new criminal judgment - R v Thomas [2016] UKSC 12 (fictitious). You are a criminal barrister and have been asked to present a paper on the effects of this case on all other courts.

Describe the effect the Supreme Court’s decision will have on all courts; the manner by which the case is likely to be reported and whether the decision can be avoided by any courts that disagree with it.

Would your answer differ if the judgment was delivered by the Court of Appeal (Criminal Division)? If so, how so?

This problem question is quite a simple application of precedent and requires students to understand how a case must be applied throughout the court system. Students are best advised dealing with the principles of judicial precedent before then considering how the principles operate in practice.

The first point for students to note is the meaning of precedent and the principle of stare decisis. In order for a decision or judgment to be legally binding on courts, three conditions must be satisfied. First, there must be a statement of law, as opposed to a statement of fact – In this case, we are not informed what the actual statement of law is from the Supreme Court; however, we can infer that some statement of law exists. Further, from the party names (i.e. R v Thomas), we know that the case is concerned with a criminal matter – thus the statement of law will be more relevant to criminal courts than the civil courts.

Second, the statement must be one of ratio decidendi. Students should first explain what this term means and compare it to obiter dicta. The facts of the scenario do not inform us what the ratio is; however, we can infer that such a ratio exists. Students should note of course that if the ratio is not relevant to the facts of the case of a lower court, that lower court is not obliged to follow it. The statement of law (above) must relate to the same or similar facts as the lower court.

Finally, the ratio must come from a superior court. In this case, the court providing the judgment is the Supreme Court which is the highest court in the land and binds all courts below it. Students should also note that generally the Supreme Court will bind itself on such matters (as did the House of Lords) unless there is a good reason to depart from the decision (Practice Statement (Judicial Precedent) [1966]).

Students ought to be clear that as the judgment is provided by the Supreme Court, it will apply to all lower courts unless the judgment can be avoided. Students should then discuss the circumstances where the judgment may be avoided, i.e. by distinguishing the authority on the facts in order to avoid its binding nature. The problem question is clearly in asking whether the lower courts can avoid the decision because they “don’t like it”. Disagreeing with the judgment is not a ground for the lower courts to not follow it; rather, their only way in which they can avoid an authority is to distinguish it.

The problem question also asks what the situation would be had the decision been provided by the Court of Appeal (criminal division). The first point to note is that the Supreme Court would not be bound by the decision. It would be persuasive only. The second point to note is that all lower courts are bound by the Court of Appeal unless they can avoid the judgment like above with the Supreme Court. The focus of this second stage; however is to ask whether the Court of Appeal is bound by itself. Generally, as with the Supreme Court, the Court of Appeal is bound by its own decisions; however, it may disapply that ruling by following the exceptions in Bristol Aeroplanes. Students should explain the exceptions in Bristol and note that although this was a civil matter, it also applies to criminal matters. Students should be aware that in criminal case, there is a further exception where the Court of Appeal can depart from a previous judgment and that is where ‘the liberty of the individual is at stake’ following R v Gould and R v Taylor.