The Supreme Court Law Constitutional Administrative Essay

Published Date: 02 Nov 2017

Contents

Introduction

This report will describe the two most senior courts in England, the names and the amount of judges who would usually hear a case. And reason their importance in the system of judicial precedent. Secondly stare decicis, obiter dictum and ratio decidendi are explained along with the system of judicial precedent, how it operates and its importance as a source of law.

Hierarchy

English court hierarchy, Modified diagram (University of Oxford, 2013)

The Supreme Court

The Supreme Court was established in 2009 replacing the Appellate Committee of the House of Lords, assuming its judicial functions and role as the most senior court, it is the final court of appeal for both civil and criminal cases in England and Wales. (Wood, et al. 2011)The establishment of the Supreme Court separated the United Kingdom’s most senior judges and the upper house of parliament, increasing the transparency between Parliament and the courts, as well as highlighting the independence of the Law Lords (The Supreme Court, 2013?)

The Supreme Court has 12 judges known as Justices of the Supreme Court and is directed by a president, deputy president. The court always sits in panels of an uneven number of Judges; cases are heard by a minimum of three judges but are typically heard by five judges.

The main function of The Supreme Court is to hear appeals on questionable points of law of importance to the general public, from The Court of Appeal and in some cases the high court. The Supreme Court will also hear both Civil and criminal cases of the greatest public and constitutional importance.

The decision made by the Supreme Court, Specifically the ratio decidendi must be followed by all inferior courts (stare decisis) this means the Supreme Court has a very important role in the system of judicial precedent, because its decisions directly influence every other court in England.

The Supreme Court also has the right to depart from its previous decision when it appears right to do so, this power is used sparingly however (Tufal, n.d.a).

The Supreme Court has the right to overrule or reverse any decision made in the English legal system.

Overruling would usually occur when the previous court applied the law incorrectly or because the later court finds the rule of law used in the ratio decidendi no longer desirable.

Reversing would occur in the event of appeal and a higher court disapproving of the lower court’s decision.

The Court of Appeal

The court of appeal is the second most senior court in England; it is separated into a civil division and a criminal division. It is the highest court of the senior courts, which includes the High Court and Crown Court. (Wood, et al. 2011)

The Court of appeal hears appeals on a question of law, a fact from a lower court and certain tribunals.

The Civil Division hears appeals form the High Court, County Courts across England and Wales and certain Tribunals. The civil division’s president is known as Master of the Rolls.(Wood, et al. 2011)

Appeals from the Crown Court are heard by the Criminal Division; the head of the criminal division is called Lord Chief Justice. Both divisions are generally heard by three judges known as Lord Justices and Lady Justices. Other heads of division who sit in the court of appeal are the Chancellor of the High Court, President of the Family Division and the President of the Queen's Bench Division. (Justice, 2011)

The Court of Appeal must follow the decisions of the Supreme Court even if it considers them to be wrong, but can depart from previous decisions made by themselves or lower courts in the following circumstances:

The Court of Appeal must choose which decision to follow or reject when its own previous decisions conflict.

If the decision cannot stand with a decision of the Supreme Court, then the Court of Appeal must refuse to follow its own previous decision.

The Court of Appeal does not need to follow a decision it has previously made if it was given by carelessness or error.

(Justice, 2011)

The principle of stare decisis is not followed as firmly in criminal cases because someone’s liberty may be at risk.

Judicial Precedent

Judicial precedent is an important source of law; it allows judges to base their decision on previous cases with sufficiently similar characteristics. This saves time, allows consistency and increases predictability in the law. This is enforced on a hierarchical basis; the lower courts are bound by the decisions of the higher courts but not always by their own decisions. This is the principle of stare decisis (to standby the decided). (Wood, et al. 2011)

Precedent becomes more important and complex with age, as more cases create precedents. It is important to note that judicial precedent is created from real life situations and built by reasoned decisions reflecting reality, and is therefore considered significantly accurate and flexible due to overruling reversing and distinguishing (the judge’s ability to find new facts, or differentiate the facts or point of law, allowing them to depart from the decision (Tufal, n.d.b)). Conversely statutes are generally created on basis of theory (Kalis, n.d.).

Judicial precedent can also be considered inflexible, as lower courts in the hierarchy are bound to the decisions made by higher courts. This can result in unjust decisions of higher courts being used by lower courts to reach decisions.

Ratio Decidendi and Obiter Dictum

The ratio decidendi is the binding part of a decision and is the principle of law on which the decision of a case is based.

The obiter dictum speculates what the judge would have decided if the facts of the case were different, it may be of persuasive authority in later cases, but it is not binding on future cases. (Tufal, n.d.b)

Difficulty can arise in the event of the judge not specifying what the ratio decidendi is; it would then be required by the later judge/s to interpret what the ratio of the case is. It is also possible for more than one ratio to exist which can cause disagreement over what or which part is the ratio of the case.