6 The doctrine of precedent Introduction How can we understand the doctrine of precedent?

t? Perhaps the best place to start is with the judicial understanding of the doctrine: Our common law system consists in applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedents; and for the sake of obtaining uniformity, consistency and certainty, we must apply those rules where they are not plainly unreasonable and inconvenient, to all cases which arise and we are not at liberty to reject

them, and to abandon all analogy to them...because we think that the rules are not as convenient and reasonable as we ourselves could have devised. Mirehouse v Rennell !"##$$ %o summarise at least one of the points from this paragraph, the doctrine re&uires that like cases should be treated alike in the interests of uniformity, consistency and certainty. %his seems a good place to start, and a fairly common sense point. 'f an instant case is sufficiently like a previous case then the previous case is binding on the instant case.

What do we mean by binding'? %o help us with this &uestion, we are going to turn to the standard academic commentary on precedent. (s )ross and Harris point out Precedent in *nglish law !++!$$ what distinguishes precedent in *nglish law is its strongly coercive nature! 'n other words, there are other ways in which the present decision in a case can be guided by previous decisions; one could, for instance, choose to see previous decisions as merely illustrative of possible solutions; one might choose to follow a previous case, or one might not.

 However, we will focus on the central features of the common law, doctrine of precedent! )ross and Harris comment that the doctrine of precedent has: ...three constant features. %hese are the respect paid to a single decision of a superior court, the fact that a decision of such a court is a persuasive precedent even as far as the courts above that from which it emanates are concerned, and the fact that a single decision is always a binding precedent as regards courts

below that from which it emanated.

MAKE CASE NOTES ON: ,iliangos v -eorge .rank /!+012 3avis v 4ohnson /!+052 Practice 6tatement H7: 4udicial Precedent$ /!+11 8 v 6hivpuri /!+"12 (nderton v 8yan /!+"92 8 v Howe /!+"02 3PP for :orthern 'reland v 7ynch /!+092 6chorsch ,eier v Hennin /!+092 8 v )legg /!++92 7eeds )ity )ouncil v Price;<ay v 7ondon =orough of 7ambeth />??12 8 v Horncastle />?!?2 ,anchester )ity )ouncil v Pinnock 6ecretary of 6tate for )ommunities and 7ocal -overnment and another intervening$ />?!?2

 *, 7ebanon$ v 6ecretary of 6tate for the Home 3epartment />??"2 8e - (doption: @nmarried )ouple$ />??"2 # A78 01; 8 on the application of 7imbuela$ v 6ecretary of 6tate for the Home 3epartment />??92 :ote: remember that the importance of the cases above relates to what they tell us about the doctrine of precedent. ,ake sure your case note focuses on this fundamental issue! 'n other words, focus on the actual substantive law discussed in these cases to the eBtent it is relevant to the

concern with the doctrine of precedent. 6ome of the eBercises below will guide your readings of these cases and assist you in making the relevant case notes. %his is the first chapter that contains substantive e"aminable material for the essays that are contained in Part = of the eBamination. 't is important that you read )hapters 1, 0 and " of -earey et al., and make the case notes that are suggested above.

 .@8%H*8 8*(3': Holland and Aebb, )hapters 1 C%he doctrine of judicial precedentC, 0 CHow precedent operates: ratio decidendi and obiter dictumC and !> C*Bploiting legal reasoningC. (skey and ,c7eod, )hapters 5 C%he jurisdictions of the principal courtsC and 0 C7egal methodC, section entitled C6yllogistic reasoningC. :=. (skey and ,c7eod on syllogistic reasoning should be read alongside Holland and Aebb, )hapter !>. (lthough it is very useful, this subject guide does not go into these issues in great detail, and

this material is not e"aminable.

6!# $recedent as a practice Precedent is a sophisticated mechanism, and one can underestimate its compleBities. Our outline above, and the approaches to cases and statutes that we eBamined in the last chapter, give us a sense that reading law is a set of techni&ues. Ae appreciated the way in which legal teBts CworkC; how they can be applied and argued about. How do we CfitC the rather simple description in the introduction to this chapter with this sense of the dynamic nature of legal interpretationD

 Ae want to try to understand something &uite particular: how does legal interpretation CfeelCD Our way into this concern begins with a very obvious point. Ae are now siB chapters into this subject guide. There is a lot to take into account when one tries to understand the law; and yet there are lawyers and judges, who just Cdo itC; whose life is based around their mastery and deployment of certain skills within the institutions of the law courts etc.$. %he obvious point is that they have trained themselves to be good at the skills of legal interpretation!

 %his takes us to a second obvious point: there are ways of Cdoing thingsC that can be learnt. 7egal argument has to be understood as a set of techni%ues that make sense within a certain institutional setting. 'n other words, our task in understanding the doctrine of precedent is to see it as a practice: a way of doing things legal argument$ within the institutional setting of the legal system.

6!& $recedent and public reason )hapter 1 of -earey et al. argues that precedent has to be understood as a way in which case law is justified and legitimised within a democracy! %o understand the claim that precedent is a form of public reason, one has to appreciate the following points: #! 'udges give reasons for their decisions. %his presupposes that their decisions need to be justified. )hapter 1 of -earey et al. argues that there are three distinct (and overlapping) audiences for a judge s decision: lawyers

and parties to litigation, academics and law students and the public in general.

 *ach audience has a distinct approach to a decision. ( lawyer;litigant will have practical concerns with the judge s reasoning. %he other audiences, in different ways, have general critical concerns with how law functions in a democracy. %hinking about judicial reasoning through the idea of public reason thus suggests that a judicial decision must be justified to the public the various audiences outlined above$ in a rational way. %his is also a matter of general concern in a democracy, and goes at least some way to

legitimising the law making powers of judges. >. -earey et al. also suggest that judges address the law itself! ( decision in a particular case has to fit into the law in general. 't has to represent a coherent development of legal doctrines, rules and principles. 4udicial law making involves a large measure of judicial discretion. 'n part what guides and limits this discretion is the re%uirement that the decision is justified to the public.

 'n deciding a case judges have to be aware that their reasons for a decision will be criticised if they do not provide a coherent justification for the conclusions that they have reached.

 #. 6o, if the re&uirement of coherent legal development is an important stabilising factor in judicial law making, then the doctrine of precedent provides an important institutional set of restraints. %his takes us to an argument about an institutional form of justice. %he doctrine of precedent re&uires like cases to be decided in the same way, and a fairly rigid hierarchy of courts. %his institutional structure provides a patterned form of justice, and makes judicial law making reasonably predictable!

 Points > and # above are really just different ways of thinking about public reason. +aw is itself a form of public reason. Our comments above on precedent as public reason are merely another way of trying to describe the dynamic reality of law as a set of practices that are inseparable from the institutions, audiences and e"pectations that define them. 'n summary, we are trying to Cget atC the sophisticated sense that law is a way of Cdoing thingsCE a set of techni&ues that can be learnt.

 +aw is also institutional (remember the title of this course: common law reasoning and institutions). 'n other words, law is what the courts do, what lawyers do; the institutional restraints on judicial law making that judges have internalised. %he following sections elaborate this sense of precedent as a practice: an institutional way of reasoning or arguing.

6!, The structure of precedent %o get a proper understanding of the doctrine of precedent we need to appreciate that the *nglish legal system is adversarial in nature: there is often considerable argument as to the status, holding and meaning of the te"t of the precedent cases! ( substantial proportion of case law is made by appellate courts, with a considerable proportion of this being made by the House of 7ords;6upreme )ourt. (s a result, much judge made law is made after arguments concerning the application of a principle, or set of related principles, have been

considered at least two or three times as the litigants move up through the hierarchy of courts. 'n general the %uality of decision-making should benefit from issues being considered on a number of occasions! %here are several reasons for this: %rial judges have less time Ahen the matter is heard at first instance the trial judge will usually have spent less time resolving legal issues, and will be less e"perienced in doing so. ,uch of the work of trial judges concerns issues of fact, procedure and judicial administration.

 6o their opportunity for legal deliberation is reduced.

4udges in appeal court can reconsider the issue 'udges in appellate courts have the advantage of having before them the judgment of the court at the first instance, and so can see one attempt to argue and resolve the issues. Aith any written work, it is a considerable advantage to see any earlier attempt to deal with a matter, because one can improve on it by developing its strengths and overcoming its weaknesses! Of course, where the court in &uestion is the .ouse of +ords/0upreme 1ourt, the judges have had the advantage of the judgment at first instance and the

judgment of the 1ourt of 2ppeal )($.

)ouncel can benefit from previous case 1ounsel arguing the case also benefit from prior proceedings! 7ike the judges, they have the benefit of the judgment or judgments of any court which has previously considered the matter. 'f it is the same counsel involved, which is fre&uently the case, then they have more opportunity to research and develop their argument. 'n particular, they can develop their argument in the light of their opponent s submissions and in the light of points and objections raised about their

case by the judge or judges in the lower court s$.

(ppellate judges are competent (ppellate judges are very competent lawyers, and they become more so by working as appellate judges, since much of their time is devoted solely to hearing and resolving legal issues. :o. judgesF discussion Ahere a court is composed of a number of judges, as appellate courts invariably are, then judges have the opportunity to develop the points by discussion among themselves!

6!3 1ontinuity and change in the doctrine of precedent %he argument in )hapter 0 of -earey et al. is that precedent is, and has to be, a fairly stable system. %o eBplain this concern, we can return to a point that we have made already in this subject guide. .or judge made law to be legitimate, it has to be rationally structured and, for the most part, coherently developed. %he doctrine of precedent has to provide the basic means for this end to be achieved.

 %here has to be a clear sense of how law is made. %he structure of precedent must also, however, allow the system itself to change in those limited occasions when change is necessary. Ae will study the key cases below. Our study of the doctrine of precedent, then, is largely an e"amination of how the doctrine has justified necessary changes, and resisted attempts to reform it Cfrom withinC in an arguably radical manner.

 (s we will see below, and as is made clear in )hapter 0 of -earey et al., +ord 4enning s campaign to redefine the powers of the )( has not had any lasting effects and has to be seen as limited in its impact.

 't might tell us something disturbing about the urgency of justice, and how this urgency impacts upon a justice system, but the overarching theme is the stability of the doctrine, which has persisted despite certain perturbations that we will also draw attention to in our analysis below. )hapter 0 of -earey et al. begins with an analysis of 7ondon %ramways v 7ondon )ity )ouncil /!"+"2 %his is not a recent case, but it does tell us something about the values in tension in the modern doctrine of precedent!

 :ote carefully what the -earey et al. chapter argues about this case.

 :ow read Practice 6tatement H7: 4udicial Precendent$ /!+112 the !+11 Practice 6tatement$. %he Practice 6tatement brings these themes into focus: %heir 7ordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. 't provides at least some certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for the development of legal rules... %heir 7ordships nevertheless recogniGe that too rigid adherence to precedent may lead to injustice in a particular

case and also unduly restrict the proper development of the law. 21TI5IT6 6!# 6ummarise the analysis of the !+11 Practice 6tatement in )hapter 0 of -earey et al. %here was an application of the !+11 Practice 6tatement in ,iliangos v -eorge .rank /!+012 %he House of 7ords departed from a previous decision.

21TI5IT6 6!& 7ook up Miliangos v 7eorge 8rank and make notes on the case. 8emember, we are interested in this case because it tells us something about the doctrine of precedent. 4o not become too distracted by the details of the legal argument. Ahat are the key pointsD .eedback: check your case note against the description and analysis of the case in )hapter 0 of -earey et al.

21TI5IT6 6!, 7ook up and make case notes on 8 v 0hivpuri /!+"12, (nderton v 8yan /!+"92, 8 v .owe /!+"02 and 4$$ for 9orthern Ireland v +ynch /!+092 (s with (ctivity 1.>, make sure you eBtract the relevant points from the cases. :e are not studying criminal law; we are reading these cases because they tell us something about the doctrine of precedent. .eedback: check your understanding of the cases against the analysis in )hapter 0 of -earey et al.

6!; Tensions between the .ouse of +ords and the 1ourt of 2ppeal %here are now two themes we want to develop. Ae have argued that the doctrine of precedent is composed of certain fairly stable dispositions or structures, and that these are necessary to the principled development of the law by judges. Ae will see below that these structures were subjected to a degree of strain in a line of cases that began with 0chorsch Meier and reached something of a conclusion with 4avis v 'ohnson.

21TI5IT6 6!3 8ead and make notes on 6chorsch ,eier /!+092 'n particular, study 7ord 3enningCs argument closely. How does the principle cessante ratione legis cessat ipsa leB apply to the relationships between the )( and the House of 7ordsD .eedback: check your understanding of this case against the analysis in )hapter 0 of -earey et al.

21TI5IT6 6!; 7ook again at ,iliangos. 'n particular read 7ord 6imonCs opinion. Ahat conclusions does 7ord 6imon come toD .eedback: check your understanding of these issues by reading the relevant section of )hapter 0 of -earey et al.

 'n order to develop our analysis, it is necessary to read 6oung v <ristol 2eroplane )o /!+552 to see when the )ourt of (ppeal is bound by its own previous decisions. %he key part is 7ord -reeneCs argument :ow read 4avis v 'ohnson /!+052 and make a case note. Pay particular attention to +ord 4enning s argument! 'n particular, what is the significance of the !+11 Practice 6tatementD %o conclude this section, read the House of 7ords judgment in 3avis

v 4ohnson and the analysis in )hapter 0 of -earey et al. Ahat does 3avis v 4ohnson tell us about the doctrine of precedentD

6!6 'udicial law making Our starting point for a consideration of this theme is 7ord 6carmanCs speech in ,c7oughlin (ppellant v OC=rian !+"#$. 7ord 6carman argues that judges do create law: Here lies the true role of the two law-making institutions in our constitution. =y concentrating on principle the judges can keep the common law alive, fle"ible and consistent, and can keep the legal system clear of policy problems which neither they, nor the forensic process which it is their duty to operate, are e&uipped to resolve.

 'f principle leads to results which are thought to be socially unacceptable, $arliament can legislate to draw a line or map out a new path. %he law making power of the judge is subordinate to that of Parliament. 4udges try to limit their law making.

21TI5IT6 6!6 ,ake a case note on R v 1legg /!++92 Ahat does this case tell us about the limits on judicial law makingD .eedback: check your understanding by reading the commentary on the case in )hapter 0 of -earey et al.

6!= 'udicial law making and human rights -o back to the essay you were asked to prepare in )hapter 5 of this subject guide. %his covers themes relevant to our thinking in this section. %he H8( has opened up a new set of issues around judicial law making. =efore we continue, it is worth reminding ourselves of the basic structure of the (ct.

 %he scope of ss.>, # and 5 of the H8( and the judicial perception of the H8( can be ascertained in the following statements: /%2he H8( reflects a careful balance between Parliament, the *Becutive and 4udiciary. 't is not entrenched and denies the courts the capacity to Cstrike downC legislation for incompatibility. (s )onnor -earty puts it, declarations of incompatibility are courteous re%uests for a conversation, not pronouncements of truth from on high.C

 'n this way the 2ct specifically preserves $arliamentary sovereignty. 'f Parliament or the *Becutive disagree with a decision it remains open to them to change the law! 'n this statement 7ord 3yson points out the (ct does not compromise $arliamentary sovereignty; it has created what some commentators have called a dialogue between the courts and $arliament on human rights.

 %his view is supported by 7ady Hale: 6econdly, the .uman Rights 2ct does not re%uire us to follow the 0trasbourg jurisprudence, but it does re%uire us to take it into account section > !$$. %he courts have given this a purposive interpretation. (s the purpose of the Human 8ights (ct was avowedly to bring rights home and avoid the need for people to take their cases to 0trasbourg, we should take into account their jurisprudence with a view to finding out whether or not the claimant would win in 6trasbourg.

 =ut, keep in mind what 7ord 3yson goes on to say: :onetheless, ' would accept that there is some force in the point that the incorporation of the )onvention has called on today s judges to determine issues which judges in earlier eras would have been horrified to be asked to decide! %hey would have refused to do so on the grounds that such issues belonged to the political dimension and were not justiciable. =ut this enlargement of the role of the judge is no more than the development of a trend that was

in progress before !++" with the growth of judicial review. One only has to recall 7ord 'rvine of 7airgCs memorable injunction to the judges: Cget your tanks off my lawnC. %hat warning, uttered with all the weight of one of )ardinal AolseyC successors, was made well before the incorporation of the )onvention. CAhat is wrong with human rightsDC Paragraph !>$

 Other senior members of the judiciary have been somewhat more combative : 2 sovereign $arliament is, according to the traditional view, immune from judicial scrutiny because it is protected by the principle of sovereignty. =ut it shares with the devolved legislatures, which are not sovereign, the advantages that flow from the depth and width of the eBperience of its elected members and the mandate that has been given to them by the electorate. %his suggests that the judges should intervene, if at all, only in the most e"ceptional circumstances.

 =ut the rule of law re&uires that the judges must retain the power to insist that legislation of an e"treme kind which attacks the rule of law itself is not law which the courts will recognise. 7ord Hope, C%he role of the 6upreme )ourt in protecting the rights of the individual in a jurisdiction with no written constitutionC, para.+$

 %his is a very interesting articulation of the rule of law; and it is an idea to which we return in )hapter " on the judiciary. Ae need to get a sense of how this dialogue has developed.

 :ote, in particular, how the judges seiGed upon the H8( to develop a law of privacy. How is this justifiedD %he reasons are twofold. .irst, e%uity and the common law are today in a position to respond to an increasingly invasive social environment by affirming that everybody has a right to some private space. 6econdly, and in any event, the .uman Rights 2ct #>>? re%uires the courts of this country to give appropriate effect to the right to respect for private and family life set out in (rticle " of the *uropean

)onvention on Human 8ights and .undamental .reedoms. Henables and %hompson v :ewsgroup :ewspapers />??!2 H878 !+ at H"$

 This is entirely consistent with $arliamentary sovereignty; the H8( Cre&uires the courts of this country to give appropriate effect to the right to respect for private and family lifeC as stated in the *)H8. Ae want to link our concern with the H8( to the theme we introduced above: how is the H8( changing the doctrine of precedentD Has it lead to perturbations in the doctrine, or is the doctrine fundamentally unchangedD

6!? .uman rights, the doctrine of precedent and the common law )(6*6 7eeds )ity )ouncil v Price;<ay v 7ondon =orough of 7ambeth />??12 ,anchester )ity )ouncil v Pinnock 6ecretary of 6tate for )ommunities and 7ocal -overnment and another intervening$ />?!?2 )onnor v @< />??52 8 v Horncastle />??+2 *, 7ebanon$ v 6ecretary of 6tate for the Home 3epartment />??"2

 8 7imbuela$ v 6ecretary of 6tate for the Home 3epartment />??92 (mbrose v Harris />?!!2 %he major authority on this issue is 7eeds )ity )ouncil v Price;<ay v 7ondon =orough of 7ambeth. %he following statement of the key issue is taken from this case. Ae need to know: whether a court which would ordinarily be bound to follow the decisions 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 0trasbourg!

 %his matter was addressed in )onnor v @< />??52 5? *H88 +: 'f the national courts have to apply )onvention jurisprudence, then they must do so in the prevalent terms of a national legal system: thus, as far as the @A is concernedB the ordinary rules of precedent should apply! 'n this sense, then, it would appear that the fundamental structure of the doctrine of precedent remains! However, matters do not end there. Ae need to switch our focus to a distinct but related concern.

 Ae have argued so far that the doctrine of precedent is primarily structural, and allows the law to be developed consistently! 8ecent important cases suggest the development of a new theme; a theme that actually intensifies the old concern with judicial law making! %he issue is: what is the relationship between the common law and the *uropean law of human rightsD

 Our starting point is the mirror principle stated by 7ord =ingham in @llah: 't is of course open to member states to provide for rights more generous than those guaranteed by the )onvention, but such provision should not be the product of interpretation of the 1onvention by national courts, since the meaning of the 1onvention should be uniform throughout the states party to it. %he duty of national courts is to keep pace with the 0trasbourg jurisprudence as it evolves over time: no more but certainly no less.

 7ord =inghamCs approach has been approved by other senior members of the judiciary. 7ady Hale cites with approval 6ir 6tephen 6edleyCs argument that the logic of the mirror principle is entirely intelligible , as Cit avoids judicial legislation and prevents member states from getting out of step with one another.C

 One can also point to authorities where the courts have taken this approach, for instance, in (mbrose v Harris Procurator .iscal, Oban$ 6cotland$ />?!!2, it was argued that: It is not for this court to e"pand the scope of the )onvention rights further than the jurisprudence of the 6trasbourg court justifiesC para.>?$. %his is a compleB debate, and it is worth reading )hapter " of -earey et al. closely. %he relevant cases fall into distinctive groups. Ae are not going to read all these cases in detail.

 =ut you should make notes on the following cases and issues.

 %he first group of cases includes 8 on the application of ,arper$ v )hief )onstable of 6outh Iorkshire />??>2 and 8 on the application of -illan$ v )ommissioner of Police of the ,etropolis />??12 %he relevant *uropean )ourt of Human 8ights *)tH8$ cases are: 6 v @< and -illan and Juinton v @< (lso 8= (lgeria$ v 6ecretary of 6tate for the Home 3epartment />??+2 and (bu Jatada v @< %hese cases are eBamples of instances in which 0trasbourg has overruled decisions of the .ouse of +ords!

 Ae will look at (bu Jatada v @< in )hapter + of this subject guide, so we will not go into this case in detail here. 8ead the analysis of this group of cases in )hapter " of -earey et al.

 %here is a second group of cases where the 0upreme 1ourt has followed 0trasbourg, even though there are strong doubts e"pressed about the principles of law concerned. %he main authority is 6ecretary of 6tate for the Home 3epartment v . />??+2 %he relevant 6trasbourg ruling is ( v @< 7ord Phillips stresses that in ( v @< the *)tH8 effectively clarified its position. Prior to this case, 6trasbourg acknowledged that national security concerns meant that

disclosure of evidence did not have to take place, provided that there were procedural safeguards operating. 'n ( the *)tH8 held that the party must, however, be allowed to know the case against them, especially when being subjected to a control order. %he court does allow, however, that it may be acceptable not to disclose the source of evidence in certain circumstances. :evertheless, the controlee needs to know the nature of the case against them: 19 =efore ( v @nited <ingdom, 0trasbourg had made it plain

that the e"igencies of national security could justify non-disclosure of relevant material to a party to legal proceedings, provided that counterbalancing procedures ensured that the party was accorded Ca substantial measure of procedural justiceC: )hahal v @nited <ingdom *Bamples were cited by the -rand )hamber in 2 v @nited Aingdom covering the withholding of material evidence and the concealing of the identity of witnesses. %he 7rand 1hamber has now made clear that nondisclosure cannot go so far as to deny a party knowledge of

the essence of the case against him, at least where he is at risk of conse&uences as severe as those normally imposed under a control order.

 11 'n ( v @nited <ingdom the 6trasbourg court has none the less recognised that, where the interests of national security are concerned in the conteBt of combating terrorism, it may be acceptable not to disclose the source of evidence that founds the grounds of suspecting that a person has been involved in terrorismE related activities...

 7ord Hoffmann argues that although the House of 7ords is not bound, it should follow 0trasbourg, as otherwise the @nited Aingdom is in breach of its international obligations under the )onvention. 0? ,y 7ords, ' have had the advantage of reading in draft the speech of my noble and learned friend, 7ord Phillips of Aorth ,atravers, and ' agree that the judgment of the *uropean )ourt of Human 8ights C*)tH8C$ in 2 v @nited Aingdom (&CC>) re%uires these appeals to be allowed. ' do so with very considerable regret, because I think that the decision of the

*1t.R was wrong and that it may well destroy the system of control orders which is a significant part of this countryCs defences against terrorism. :evertheless, I think that your +ordships have no choice but to submit. 't is true that section > !$ a$ of the Human 8ights (ct !++" re%uires us only to take into account decisions of the *)tH8. (s a matter of our domestic law, we could take the decision in ( v @nited <ingdom into account but nevertheless prefer our own view.

 <ut the @nited Aingdom is bound by the 1onvention, as a matter of international law, to accept the decisions of the *1t.R 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 )onvention. ' can see no advantage in your 7ordships doing so.

 %here are occasions when the 0upreme 1ourt has refused to follow 0trasbourg Horncastle$ or otherwise clarified their relationship with the *)tH8 Pinnock$. Ae will read Horncastle in depth in the neBt section of this )hapter and again in )hapter !?. .or the moment, it is worth reading the head note, and making a note on the point in the ratio on the relationship between the 6upreme )ourt and the *)tH8.

6!?!# R v .orncastle %his case brings together a number of appeals that raise similar points of law. 'n the first appeal, the evidence against the defendants was given by a victim who died before the trial took place. %he judge admitted the witness statement under s.!!1 !$ >$ a$ of the )riminal 4ustice (ct >??#. 't was not the only piece of evidence against the defendants, but it was decisive to their conviction!

 %he second appeal concerned evidence relating to the offence of kidnapping. %he witness absconded before the trial took place because of fears for her safety. %he judge used the same section of the >??# (ct to admit the evidence. Other evidence was given at the trial which also led to the defendantsC conviction. %he defendants appeal was based on the so-called sole or decisive rule . %he rule reflects the *)tH8Cs approach to (rticle 1 !$ #$ d$.

 (pplication of the rule to the facts in these two cases suggests that the defendants did not have a fair trial, as they were not able to cross-e"amine the witnesses giving evidence against them! ,oreover, their convictions were Csolely or to a decisive eBtentC on the evidence given by absent witnesses. %he )( did not agree. %hey asserted that the approach to hearsay evidence under &CC, 2ct produced a fair trial! %he 12 refused to either reinterpret the >??# (ct to make it consistent with the

1onvention or to eBclude the evidence under s.0" of the Police and )riminal *vidence (ct !+"5. %he 6upreme )ourt held that this was one of those rare occasions when it would depart from the ruling of the *1t.R! %his was because 0trasbourg had fallen into serious error and failed to appreciate significant features of the common law and the relevant domestic legislation. %he &CC, 2ct contained rules and principles that regulated the admission of hearsay evidence, and

 that although the 2ct departed from )onvention jurisprudence and the sole or decisive rule this did not amount to a breach of 2rticle 6. %his was because the >??# (ct balanced the rights of the defendant and the interest of victims in securing a conviction!

 .urthermore, the jurisprudence of the *1t.R on the sole or decisive rule was itself unclear! 6o, what does this case tell us about the relationship between 6trasbourg and the 6upreme )ourtD 'n summary it would appear that the 0upreme 1ourt will only depart from the rulings of the *1t.R in very narrow circumstances! )hapter " of -earey et al. elaborates this point, and you should make sure that you are familiar with these arguments.

6!?!& Manchester 1ity 1ouncil v $innock (0ecretary of 0tate for 1ommunities and +ocal 7overnment and another intervening) Here is an eBtract from the judgment in this case: +ord 9euberger 51 Ae have referred in a little detail to the *uropean court jurisprudence. %his is because it is important for the court to emphasise what is now the unambiguous and consistent approach of the *uropean court, when we have to consider whether it is appropriate for this court to depart from the three decisions of the House of 7ords.

 50 (s we have already eBplained, the House of 7ords decisions have to be seen against the backdrop of the evolving 6trasbourg jurisprudence. 6o, for instance, the first of the House of 7ords decisions, Harrow 7ondon =orough )ouncil v JaGi />??52, came before any of the *uropean court judgments. <ay v 7ambeth 7ondon =orough )ouncil />??12 was decided after )onnors v @nited <ingdom. =ut, viewed without the benefit of subse%uent *uropean court jurisprudence, the reasoning in )onnors v @nited <ingdom could have been

interpreted as applying only to gipsies one race$. 'ndeed one point made on the applicantCs behalf was that gipsies occupying sites owned by local authorities were not given any rights of security of tenure, unlike occupiers of flats or houses owned by local authorities, who were secure tenants. (lthough ,c)ann v @nited <ingdom had been decided by the time of 3oherty v =irmingham )ity )ouncil />??+2, it would have been inappropriate for a five-judge court, at least in the particular circumstances, to depart substantially from the decision of the seven-judge

court in <ay v 7ambeth 7ondon =orough )ouncil />??12 'mportantly, the judgments in )osic v )roatia given !9 4anuary >??+, Kehentner v (ustria given !1 4uly >??+, Paulic v )roatia given >> October >??+ and <ay v @nited <ingdom %he %imes, !" October >?!? were all given after the last of the three .ouse of +ords decisions. 5" %his court is not bound to follow every decision of the *uropean court. :ot 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 *uropean court which is of value to the development of )onvention law: 8 v Horncastle />?!?2

 Of course, we should usually follow a clear and constant line of decisions by the *uropean court: 8 @llah$ v 6pecial (djudicator />??52 =ut we are not actually bound to do so or in theory, at least$ to follow a decision of the -rand )hamber. (s 7ord ,ance pointed out in 3oherty v =irmingham )ity )ouncil />??+2, section > of the !++" (ct re&uires our courts to take into account *uropean court decisions, not necessarily to follow them.

 Ahere, 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. 5+ 'n the present case there is no %uestion of the jurisprudence of the *uropean court failing to take into account some principle or cutting across our domestic substantive or procedural

law in some fundamental way.

 %hat is clear from the minority opinions in Harrow 7ondon =orough )ouncil v JaGi />??52 and <ay v 7ambeth 7ondon =orough )ouncil />??12, and also from the fact that our domestic law was already moving in the direction of the *uropean jurisprudence in 3oherty v =irmingham )ity )ouncil />??+2. *ven before the decision in <ay v @nited <ingdom %he %imes, !" October >?!?, we would, in any event, have been of the opinion that this court should now accept and apply the minority view of the .ouse of +ords in those cases.

 'n the light of <ay v @nited <ingdom that is clearly the right conclusion.

 %herefore, if our law is to be compatible with article ", where a court is asked to make an order for possession of a personCs 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.

 %his case builds upon the point that we are analysing. %he judgment begins by giving a summary of the relevant case law. %his is discussed in the last section of )hapter 0 of -earey et al. C%he Human 8ights (ct and perturbations in judicial practiceC$ and you should refer to this analysis if you do not understand 7ord :eubergerCs point. :ote that he stresses that he is concerned with what is now the unambiguous and consistent approach of the *uropean courtC which has to be considered carefully if the 6upreme )ourt is to depart from

previous rulings of the House of 7ords.

 7ord :euberger then stresses that the court should follow clear case law developed by the *1t.R, but that it would sometimes be inappropriate to do so as it would destroy the ability of the court to engage in the constructive dialogue with the *uropean court.C Horncastle is an eBample of this constructive dialogue. %his takes us back to the wording of s.> of the H8(. %he 0upreme 1ourt is not bound to follow the 7rand 1hamber but to Ctake /them2 into accountC.

 Pinnock can be distinguished from Horncastle as the *1t.R has not failed to take into account significant provisions of domestic law. 'ndeed, the .ouse of +ords was itself moving in the direction of the principles articulated by 6trasbourg, albeit that this movement is indicated by the minority opinions in a line of House of 7ords cases. %hus, to be consistent with (rticle ", the domestic court must take into account the proportionality of an order for possession of someoneCs home.

21TI5IT6 6!= Ahat does Pinnock tell us about the relationship between the 6upreme )ourt and the *)tH8D $innock is consistent with .orncastle. Only when the *1t.R misunderstands a significant feature of domestic law will the 6) depart from its clear articulation of legal principles.

6!?!, 2mbrose v .arris %his case is an eBample of the 6upreme )ourt preferring not to develop human rights principles because so doing would go beyond the position of the *1t.R. %he second part of the ratio held that: it was not for the court to e"pand the scope of rights under the )onvention further than the jurisprudence of the *uropean )ourt of Human 8ights justified; that, since the *uropean court had not said with a sufficient degree of clarity that a person who had become a suspect but was not yet in custody had, as a

rule, to have access to a lawyer while he was being &uestioned, the fact that such a suspect had made incriminating statements without having had access to a lawyer did not of itself mean that his article 6 rights would be irretrievably prejudiced if such answers were to be admitted in evidence; that, however, the fact that he had not had access to legal advice was one of the circumstances which should be taken into account by the judge in assessing the overall fairness of the proceedings... %he key point relates to the failure of clarity in the jurisprudence of the *1t.R!

 7ord <err, dissenting, gives three strong reasons why the 0upreme 1ourt should have e"tended the rights offered by the )onvention in this case. .inally, we will consider the indications that the national court would be willing to push human rights jurisprudence in a certain direction: *, 7ebanon$ v 6ecretary of 6tate for the Home 3epartment />??"2, 8e (doption: @nmarried )ouple$ />??"2 and 8 7imbuela$ v 6ecretary of 6tate for the Home 3epartment >??9$

21TI5IT6 6!? 8ead and make notes on the facts and ratio of *M (+ebanon)! 6ummarise the main points made by the ratio. %he .ouse of +ords held for the applicant. %he House of 7ords stressed that the Cfamily lifeC to be taken into account can take various forms. On the facts of this case, the bond between the mother and her son was such that return to 7ebanon would be so serious as to amount to a flagrant breach of (rticle ", as it would Cdeny or nullifyC the applicantCs right to a family life.

 Ae can look at a short eBtract from 7ord HopeCs argument: !0.../%2he key to identifying those cases where the breach of articles " and !5 will be flagrant lies in an assessment of the effects on both mother and child of destroying or nullifying the family life that they have shared together. %he cases where that assessment shows that the violation will be flagrant (e"tremely bad) will be very e"ceptional! =ut where the humanitarian grounds against their removal are compelling, it must follow that there is an obligation not to remove!

 %he risk of adding one test to another is obvious! =ut in the absence of further guidance from 0trasbourg as to how the flagrancy test is to be applied in article " cases, I would adopt that approach in this case. !" (s ' said as the outset of this opinion, the case for allowing the appellant and her son to remain in this country on humanitarian grounds is compelling! %his is particularly so when the effects on the child are taken into account. His mother has cared for him since his birth.

 He has a settled and happy relationship with her in this country. 7ife with his mother is the only family life he knows. 7ife with his father or any other member of his family in 7ebanon, with whom he has never had any contact, would be totally alien to him. %his enables me to conclude that this is a very e"ceptional case and that there is a real risk of a flagrant denial of their article ? rights if the appellant and her child were to be returned to 7ebanon. ' would allow the appeal.

 7ord Hope is e"ploiting the failure of clarity in the 0trasbourg test, to press the particularly humanitarian conclusion of this case. Perhaps if the facts of the case were less compelling, the .ouse of +ords would have been less willing to interpret the test in such a creative way.

6!?!3 R (+imbuela) v 0ecretary of 0tate for the .ome 4epartment %he three claimants were asylum seekers who claimed to be destitute but had been refused support under s.+9 of the 'mmigration and (sylum (ct !+++ on the ground that they had not claimed asylum as soon as reasonably practicable after their arrival in the @nited <ingdom within s.99 !$ of the :ationality, 'mmigration and (sylum (ct >??> and support was not necessary to prevent a breach of their 1onvention rights under s.99 9$. *ach claimant, who had thereafter either been sleeping in the open or was faced with the imminent prospect of having

to do so, and, owing to the statutory prohibition on asylum seekers taking employment, had no means of obtaining money to buy food other than by reliance on charity, applied for judicial review of the 6ecretary of 6tateCs decision to refuse support on the ground that his suffering was so severe that a breach of his right not to be subjected to inhuman or degrading treatment under 2rticle , of the *)H8 and fundamental freedoms as scheduled to the H8( was imminent. %he judge in each case granted the application. On the 6ecretary of 6tateCs appeals the )( held that a

distinction was to be drawn under 2rticle , between unlawful state-authorised violence, which was prohibited, and suffering other than violence arising from e"ecutive decisions made in the e"ercise of lawful policy objectives, which were lawful unless the conse%uences for individuals reached a high degree of severity; but, by a majority, that on the particular facts of the individual cases the judges had been entitled to conclude that the condition of the claimants was verging on the degree of severity necessary to engage 2rticle , so as to entitle them to support under s.99 9$.

 :ote both the nature of the applicantsC arguments, in particular their argument in relation to 2rticle ,, and the facts of their cases. :ote the procedural history of the case. %he House of 7ords is hearing the 6ecretary of 6tateCs appeal from the ruling of the )(.

21TI5IT6 6!> 6ummarise the ratio of the case. How did the court approach the 6trasbourg jurisprudenceD 2rticle , was engaged by the 0ecretary of 0tate s decision to withdraw support. (s the obligation under (rticle # was CabsoluteC there was no necessary adaptation to the relevant test of severity because government policy was being followed. %he court had to consider the facts and conte"t of each case and determine whether or not the restrictions and deprivations that surrounded the claimant

amounted to inhuman or degrading treatment ! On the facts, the applicants had suffered such treatment! 7ord Hope interprets the relevant test as absolute. (lthough it clearly applies to for eBample$ a prohibition on torture, it also applies to a positive act to prevent suffering reaching the re%uisite level of severity. %he 1ourt has laid down a minimum level of severity, and 7ord Hope follows )onvention jurisprudence in taking into account all the facts of the case. .e interprets the law so as to make the 0ecretary of 0tate

directly responsible for the applicants destitution

21TI5IT6 6!#C 8ead the discussion of these cases in )hapter " of -earey et al. 3o you agree that the articulation of the law by the *)tH8 is preferable to that of the domestic court in all these casesD 3o you prefer 7ord PhillipsC approach to that of 7ord Hoffmann in (.D (re Horncastle and Pinnock consistent decisionsD (re the decisions in *, and 7imbuela justifiable in )onvention jurisprudenceD

0ummary %his chapter has focused on five main concerns: precedent as public reason precedent as a practice hierarchy and fleBibility in the doctrine of precedent judicial law making the relationship between the domestic courts and the *)tH8 in 6trasbourg.

02M$+* *D2MI92TIE9 F@*0TIE90 Fuestion # C%he contemporary practice of precedent is largely unproblematic; indeed, since the Practice 6tatement of !+11 the parameters of the doctrine of precedent have been largely settled.C 3iscuss. Juestion ! ( good answer would probably agree with the statement in the &uestion. %he real issue is perhaps +ord 4enning s campaign to enhance the powers of the )(. 6o, a good answer would focus on 6chorsch ,eier, ,iliangos v -eorge .rank, Ioung v =ristol (eroplane and 3avis v 4ohnson.

 8egarding 3avis v 4ohnson, a good answer would give an in depth consideration of 7ord 3enningCs reasoning, and his arguments in relation to =ristol (eroplane and the claim that Cevery court of justice possesses an inherent power to correct an error into which it had fallen.C %here would be some consideration of the House of 7ords in 3avis and the final refutation of 7ord 3enningCs campaign to enlarge the powers of the )(. (n outstanding answer might also cover the impact on the doctrine of precedent caused by the H8( and eBamine 7eeds )ity )ouncil v

Price;<ay v 7ondon =orough of 7ambeth.

 7ord =inghamCs judgment stressed the importance of the !+11 Practice 6tatement and that the Cordinary rules of precedentC still applied in a human rights conteBt

Fuestion & C%he mirror principle is not a useful way of thinking about the relationship between the domestic courts and the *uropean )ourt of Human 8ights.C 3iscuss. %he best way to think about this &uestion would be to make a judgement on the accuracy or inaccuracy of the statement about the mirror principle! %he statement is probably inaccurate. 3espite criticism of the mirror principle, it does provide a useful way of thinking about the relationship between the domestic courts and the *)tH8.

 %he starting point would be a discussion of s!& of the .R2 E and the notion that the domestic courts must take )onvention jurisprudence into account. 7ord =inghamCs argument in @llah is then a necessary reference point; as is some discussion of the idea that domestic courts should follow 6trasbourg, but are not strictly bound to do so. ( well organised answer would also look at key authorities like Horncastle and Pinnock, as well as considering some of the more critical approaches, such as 7ord Hoffman in (. and 7ord <err in (mbrose and Harris. %he conclusion of the essay would return to the key point: although the domestic courts are not

strictly bound to follow the *)tH8, they will do so unless a 6trasbourg ruling ignores or misunderstands some fundamental feature of the common law.

Juick &uiG Fuestion # %he !+11 Practice 6tatement Ahich one of the following responses is the most accurate summary of the statementD %he 7aw 7ords think that the House of 7ords should never depart from its previous rulings. %he House of 7ords should depart from its previous rulings whenever it feels that it may be right to do so, all things considered. Ahilst decisions of the House are binding, the House of 7ords will depart from a previous decision when it is right to do so.

 Ahilst decisions of the House are binding, the House of 7ords will depart from a previous decision when it is right to do so. 'n deciding whether or not to depart from a previous decision, the House of 7ords will consider a number of factors that relate to both civil rights and obligations and the criminal law.

 Fuestion & 'n the )ourt of (ppeal in 3avis v 4ohnson, 7ord 3enning held that: ' would prefer that the full )ourt of (ppeal should take for itself guide lines similar to those taken by the House of 7ords in !+11 to depart from a previous decision of its own where that decision was clearly wrong but otherwise ' should regard this as an additional eBception to those stated in Ioung v. =ritish (eroplane )o. 7td. Ahich one of the statements below most accurately summarises this statementD %he )ourt of (ppeal should have the same power as the House of 7ords to depart from its previous rulings.

 %he )ourt of (ppeal should have the same power as the House of 7ords to depart from its previous rulings when they are clearly wrong. %he )ourt of (ppeal should have the same power as the House of 7ords to make law. 7ord 3enning eBpresses a preference: he would prefer that the House of 7ords should be able to use the !+11 Practice 6tatement to depart from its own previous decisions when they are clearly wrong, but would also accept the view that the eBceptions in =ristol (eroplane should be eBpanded.

 Fuestion , 'n Pinnock, 7ord :euberger argued: %his court is not bound to follow every decision of the *uropean court. :ot 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 *uropean court which is of value to the development of )onvention law: see e.g. 8 v Horncastle />?!?2 Of course, we should usually follow a clear and constant line of decisions by the *uropean court: 8 @llah$ v 6pecial (djudicator />??5

 =ut we are not actually bound to do so or in theory, at least$ to follow a decision of the -rand )hamber. (s 7ord ,ance pointed out in 3oherty v =irmingham )ity )ouncil />??+2 ()#10, para !>1, section > of the !++" (ct re&uires our courts to Ctake into accountC *uropean court decisions, not necessarily to follow them. Ahere, 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.

 Ahich one of the following statements most accurately sums up his argumentD %he 6upreme )ourt is bound to follow decisions of the *uropean )ourt of Human 8ights and can never depart from them. %he 6upreme )ourt should always follow decisions of the *uropean )ourt of 4ustice. %he 6upreme )ourt should follow a clear and consistent line of decision by the *uropean )ourt of Human 8ights. %he 6upreme )ourt should follow a clear and consistent line of decision by the *uropean )ourt of Human 8ights so long as they

do not either ignore or misunderstand some fundamental common law principles. Fuestion 3 'n *,, the House of 7ords held: Held, allowing the appeal, that article " of the )onvention would not be engaged in relation to the removal of an alien from a contracting state unless the treatment which she would receive in the destination state would amount to a flagrant breach of article ? such as would completely deny or nullify the very essence of the right to respect for her private and family life; that there was no preEdetermined model of family or family life to which the article had to be applied, but it

re%uired respect to be shown for the right to such family life as was or might be enjoyed by the particular applicant bearing in mind the participation of other members who shared in it; that since the claimant and her child had constituted a family for the entirety of the childCs life, without any contact with the father or his family, and since any contact between the claimant and her child after return would be limited to occasional supervised visits, the effect of return would be to destroy the family life of the claimant and her child as it was now lived, particularly when the effects on the child were taken into account; and that,

accordingly, in those eBceptional circumstances article " of the )onvention precluded the claimantCs removal.

 Ahich one of the following statements most accurately sums up the ratioD (rticle " would only be engaged when there was a flagrant breach of (rticle ". ( flagrant breach would have to amount to the denial or nullification of the essence of the right to private and family life. (rticle " would not be engaged when there was a flagrant breach of (rticle ". ( flagrant breach would have to amount to the denial or nullification of the essence of the right to private and family life.

 (rticle " did not apply in this case; the applicant could be deported. (rticle " would only be engage when there was a flagrant breach of (rticle ". ( flagrant breach would have to amount to the denial or nullification of the essence of the right to private and family life. .urthermore, it was important to take into account the facts of the case, and to appreciate that the family could take different forms.

8@RT.*R R*24I97 *therton, %. C7iberty, the archetype and diversity: a philosophy of judgingC >?!?$ Public 7aw 0>0.