ENGLISH

LEGAL SYSTEM
(LAW 60704)
PUTERI SOFIA AMIRNUDDIN

Module Number:
LLB 1304

Publication Date:
August 2014
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Topic 1: Introduction to English Legal System and the Hierarchy of Courts

Essential Readings:
(a) Gary Slapper & David Kelly, The English Legal System, 4th edition, 2014, Chapter 1
(b) Wilson, Mitchell, Storey & Wortley, English Legal System: Directions, 2nd edition,
2011, Chapter 1
(c) Huxley-Binns and Martin, Unlocking The English Legal System, 4th edition, 2014,
Chapter 1

1.1.0 Introduction
This chapter introduces the basic ideas and themes that run through the course.

We will look first at cases and statutes as sources of law; a theme that we will place in its
historical context. Our attention will then turn to an outline of judicial law making and the
doctrine of precedent. The next section of the chapter will study the relationship of the
courts to Parliament, and examine the differences between civil law and criminal law. The
latter sections of the chapter will focus on the hierarchy of the courts and its relationship
with the doctrine of precedent.

1.1.1 Studying the common law

The first section of this chapter outlines the main institutions of the common law that we
will study and the contemporary situation of the common law in England and Wales. Later,
we will turn to some historical perspectives.

It is important that you:

▪ know how the judges and magistrates work
▪ are able to read cases and statutes
▪ understand the way the criminal and civil courts operate
▪ know how the hierarchy of courts operates and understand the dynamic nature of
the doctrine of precedent

1.1.2 What is the common law?

The phrase ‘common law’ is used to denote the law applied by the courts as developed
through the system of precedent. Historically, the common law can be dated to the early
1100s and the work of the Norman Kings in developing a single body of rules with which to
govern England. Roman law had an important influence on the development of the common
law. Commentaries were central to the development of the common law. There were
important studies of the common law written throughout the medieval period (for instance,
Henry de Bracton’s De Legibus et Consuetudinibus Angliae, 1235) but we will take Sir
William Blackstone (1723–80) as our main point of reference. Blackstone was a Justice of
the Court of the King’s Bench and a commentator on the common law. He wrote one of the
most influential and systematic studies of the common law. Blackstone’s Commentaries on
the laws of England (1765−69) described the common law as ‘unwritten law’ in contrast
with the written law of statutes or codes. Blackstone presented the common law as a form
of oral tradition derived from general customs, principles and rules handed down from
generation to generation by the court lawyers and judges, who participated in a common

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life in one of the Inns of Courts to which all had to belong. Eventually this oral tradition was
reflected in the reports of the decisions of the important courts and the ‘knowledge’ was
then stored in a ‘written’ form, namely the Law or Case Reports.

You should note, however, that there was no organised system of court reporting until the
late 19th century and prior to that all reports were private initiatives (reports were made by
barristers in the courts and circulated privately for a fee).

Historically, the common law tradition has always placed the judiciary at the centre of
things. Judicial decisions are seen as constituting the written law – a body of maxims,
precedents and reported decisions that constantly need to be rationalised and developed
into a coherent ‘system’.

1.1.3 Civil Law Systems

In contrast with the common law, the continent of Europe has been directly or indirectly
influenced by Roman law (civil law), with its emphasis upon a code. Civil law proceeds from
an exhaustive code of propositions in accordance with which all subsequent experience
must be judged. In this picture, the civil lawyers of Europe are said to favour accessibility
over certainty. They stress that the law should be available to all and easy to understand.
Precedent is not dispensed with but its hold is looser than in the English legal system.

Civil law systems tend to use a career judiciary who staff inexpensive tribunals which can
informally resolve disputes. A broad ‘purposive’ approach is encouraged towards the
interpretation of enacted words and phrases, and consistency is considered less important
than doing justice to the individual parties. It is not uncommon for codes to be deliberately
vague and general in their choice of language, the better to allow individual cases to be
decided upon their merits.

1.1.4 Development of Common Law

The common law is meant to somehow embody the genius of a people. What does this
mean? These myths of common law are bound up with the history of the British Empire.
Most historians would agree that the colonial period was not one in which enlightened
administrators spread civilisation to benighted peoples. The Empire was based on violence,
conquest and the extraction of resources from the colonial ‘periphery’ to enable the
development of the metropolitan power. The British Empire was sophisticated and, at least
towards the late part of the 1800s, developed doctrines of indirect rule that made use of
customary and indigenous law rather than overt violence.

The dismantling of the Empire after the Second World War adds a further level of
complexity to the legacies of the common law; but the point of these chapters is to
encourage critical thinking about the British Empire and the post-colonial period.

The English legal system was exported around the world during the colonial period. The
legal systems of the USA, Australia, New Zealand, Singapore, Malaysia and most of the
Commonwealth countries, for example, are all based on English common law although they

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may mix in local customary law, religion-based law or other influences. The common law
system tends to be case-centred and hence judge-centred, allowing scope for a discretion,
ad hoc, pragmatic approach to the particular problems that appear before the courts. Each
country has its own unique characteristics. Hong Kong, for example, is a special
administrative region of the People’s Republic of China (PRC) and its legal system is
guaranteed by the basic law to be a common law system for 50 years after the hand over to
the PRC. The PRC itself is a mixed civil law system with a socialist political organisation, yet it
is adding common law features as it seeks to develop a more robust ‘rule of law’.

What makes these different jurisdictions part of the common law legal family is not exactly
similar rules or propositions, but, rather, a working jurisprudence. As Justice Story declared
in Van Ness v Pacard (1829) 2 Pet 137, in respect of the USA: “The common law of England is
not taken in all respects to be that of America. Our ancestors brought with them its general
principles, and claimed it as their birthright: but they brought with them and adopted only
that portion which was applicable to their situation.”

In the view of Chief Justice Shaw of Massachusetts, in Norway Plains Co v Boston & Maine
Railroad (1845) 1 Gray 263, the flexibility of the common law ensured its adaptation in
different countries.

It is one of the great merits and advantages of the common law, that instead of a series of
detailed practical rules, established by positive provisions, and adapted to the precise
circumstances of particular cases, which would become obsolete and fail, when the practice
and course of business, to which they apply, should cease or change, the common law
consists of a few broad and comprehensive principles, founded on reason, natural justice,
and enlightened public policy.

It is not necessary to agree with his precise listing of the basis of the common law in order
to agree with the image of flexibility.
Today we can talk of two great secular legal families. The legal systems of continental
European countries, which were also exported around the world, gave rise to the civil law
systems. The most influential of these has been that of France, because, by introducing the
Code civil in 1804, Napoleon Bonaparte gave to France the first modern European legal
system, which was copied elsewhere. In practice, each jurisdiction may mix their secular
legal tradition with local customary or religious traditions.

1.1.5 Acts of Parliament (statutes or legislation)

Although the common law is judge made, and case law remains a source of law, influential
legal reformers active in the early 1800s were critical of what they saw as the incoherent
nature of case law. They drew on traditions of British political thinking that focused on the
importance of sovereign power rather than the law making power of the judges. In
particular, Hobbes’ Leviathan (1660) proved an important reference point. Hobbes argued
that there should be a single source of sovereign power in a nation. Political events allowed
this source of power to be associated with Parliament; and the influence of radical thinkers
like Jeremy Bentham (1748–1832) and John Austin (1790–1859) further developed what
became known as the positivist approach to law. The positivists stressed the importance of

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a coherent, logical analysis of the law; and Bentham pushed forward various reform projects
that were designed to give the law a single, informing philosophy. Bentham particularly
disliked the old fashioned nature of the common law; likening it to a crumbling gothic castle.
Law had to become modern and linked to the rational government of the country.

By the late 19th century, statutes, or Acts of Parliament, had become a major source of law
in England and Wales. As the state took on increasing responsibility for economic
management and social regulation, the volume of statute law continued to grow. Whilst
Bentham and Austin might not have agreed with the growth of state power, and certainly
did not anticipate the welfare state of the late 20th century, it would be fair to say that
social and economic policy required a great deal of legislation.

One must also remember the political changes that underlay the sovereignty of Parliament.
From the 1830s onwards, the franchise (i.e. those who had the right to vote) also expanded.
This was due to popular agitation, as well as the work of reforming governments, who
sensed that a broad franchise was necessary to legitimise (i.e. make acceptable) the power
of Parliament. Shortly after the First World War, when the right to vote was granted to
women, the franchise included most adults in England, Wales, Scotland and Northern
Ireland.

We can link this point about the legitimacy of Parliament with the idea that statutes are the
supreme source of law. A statute will override inconsistent case law. This is because
Parliament is a democratic body, elected by ‘the people’. It is therefore justifiable that
Parliament creates supreme law.

Perhaps the most accurate contemporary statement about the sources of authority of the
law follows H.L.A. Hart’s argument in The concept of law (1961). We can refer to two
sources of law in the United Kingdom (or, in Hart’s language two ‘rules of recognition’ that
allow us to specify the sources of UK law): cases and statutes. Statutes are the supreme
source of law; a fact that recognises the sovereignty of Parliament. We could say that this
element of law reflects the legitimacy of Parliament. Judges have a law making power to
develop the rules of the common law. Note, however, that although this power is
subordinate to Parliament, it should properly be seen as a law making power. We will return
to the question of its legitimacy in the section below and in later chapters of this subject
guide. We will see that, since the HRA, the relationship of the judges to Parliament has
become a ‘live’ issue.

1.1.6 Judicial reasoning and the doctrine of precedent

The development of the common law is guided by the doctrine of precedent: this means
that cases that are judged to be similar are decided in the same way. In order to understand
what judges are doing we will suggest that judicial reasoning can be understood as a
structure (or institution, see above) that allows the common law to develop coherently. It
also limits judicial law making. We will argue that precedent is a practice, and a significant
element of this practice is the restraint it places on judicial discretion to make law. We will
also argue that precedent is itself structured by the idea that judges must explain their

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decisions and justify them. We will call this the requirement that judges give public reasons
for their decisions.

1.1.7 The courts – Basic Procedure

It is useful to think about some basic points in relation to how procedure works. A court can
be seen as an arena, wherein a contest is waged between parties in which one emerges the
winner. In the adversarial system practiced in common law courts, the parties dictate,
within the constraints of traditional forms and packages (such as writs, forms of action and
pleadings), the form, content and pace of proceedings. The pre-trial proceedings are
arranged such that by the time of the trial, each side should have gained as much
information as possible both to support their own case and to exploit any weaknesses in the
opposition’s arguments. The agent of the court (i.e. the judge) should stand back and wait
for the case to proceed to trial. During the trial, the judge in civil cases, and the judge and
jury in criminal cases, should allow themselves to be guided, at least initially, as to the
relevance of questions of fact and law by the parties’ advocates. The judge should take a
procedural ‘back seat’ and intervene only to ensure that fair play is operating – or where the
public interest is at stake.

The proceedings are dominated by the advocates for the parties with the prosecution trying
to build a strong case against the defendant and the defence endeavouring to demolish the
prosecution’s case. Throughout this procedure, witnesses are examined and cross-
examined, using a variety of tactics available to the skilled advocate. Some advocates use
subtle means to cause witnesses to react in a certain way, others use bullying tactics to
obtain the same result from nervous participants. The success of a case, therefore, often
rests upon the ability of an advocate to manipulate proceedings and not just the weight of
evidence.

However, consider Lord Neuberger’s judgment in Al-Rawi v Security Service [2011] UKSC 34.
Lord Neuberger is talking about the civil trial (i.e. not the criminal trial, but we will
generalise his points below):

14 Under the common law a trial is conducted on the basis that each party and his lawyer
sees and hears all the evidence and all the argument seen and heard by the court. This
principle is an aspect of the cardinal requirement that the trial process must be fair, and
must be seen to be fair; it is inherent in one of the two fundamental rules of natural justice,
the right to be heard (or audi alterem partem, the other rule being the rule against bias or
nemo iudex in causa sua).
[...]
16 Another fundamental principle of our law is that a party to litigation should know the
reasons why he won or lost, so that a judge’s decision will be liable to be set aside if it
contains no, or even insufficient, reasons. As Lord Phillips of Worth Matravers MR explained
in English v Emery Reimbold & Strick Ltd (Practice Note) [2002] 1 WLR 2409, para 16, ‘justice
will not be done if it is not apparent to the parties why one has won and the other has
lost’...

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17 A further fundamental common law principle is that trials should be conducted in public,
and that judgments should be given in public. The importance of the requirement for open
justice was emphasised by the House of Lords in Scott v Scott [1913] AC 417.

18 Connected to these fundamental principles are two other rules developed by the
common law. First, a civil claim should be conducted on the basis that a party is entitled to
know, normally through a statement of case, the essentials of its opponent’s case in
advance, so that the trial can be fairly conducted and, in particular, the parties can properly
prepare their respective evidence and arguments for trial. Secondly, a party in civil litigation
should be informed of the relevant documents in the control of his opponent, through the
medium of what is now called disclosure; this helps ensure that neither party is unfairly
taken by surprise, and that the court reaches the right result, as neither party is able to rely
on a selection of documents which presents the court with a misleading picture.

The civil trial process is given structure by certain values: ‘the two fundamental rules of
natural justice, the right to be heard (or audi alterem partem, the other rule being the rule
against bias or nemo iudex in causa sua).’ We have already encountered the rule against
bias (nemo iudex in causa sua). We can now add to it ‘the right to be heard’ (audi alterem
partem). These are technically called the ‘rules of natural justice’. Natural is rather unusual
in this context. As we cannot deal with the history of natural law, or the way in which the
common law has used this concept, we can only comment that a) these rules are not really
natural – they are a product of the culture of the common law, and b) they are also the
products of common sense. Think about this. If a judge is biased against one of the parties
to the case, we would say ‘that’s not a fair trial’.Likewise – if one party dominates the
proceedings we would also conclude ‘that’s not a fair trial’. Thus, nemo iudex in causa sua
and audi alterem partem are common sense ideas about a fair trial or hearing.

Recall what we said above about the normative theory of the trial. We now have two other
basic points we could make. As far as the common law trial is concerned, it is important to
bear in mind that its two key principles are nemo iudex in causa sua and audi alterem
partem. Later, we will see that these principles can, in turn, be linked to three other
principles that determine the nature of the fair trial: the integrity of law/procedure,
participation and open justice.

The last two principles (participation and open justice) are also sketched out by Lord
Neuberger above. He states that a judge must give reasons. Justice, it might be said, is about
visibility: one needs to know why one has won or lost a case. A judgment, then, cannot be
given in secret. Surely secret judgment is the way in which unaccountable power (not law)
operates. Civil justice, then, must be delivered in open court. Hence the principle of open
justice. In the last paragraph Lord Neuberger describes another fundamental point. A trial
proceeds through the participation of the parties, it requires a statement of case and
disclosure of documents. We could relate this back to the open justice principle and the
duty to give reasons: law is about argument and reason. The trial is ultimately founded on
these values.

Lord Neuberger is not talking about the criminal trial, and we have to acknowledge that
there are differences between criminal and civil trials. However, we could make the same

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basic points about the criminal trial as the civil trial: it must be structured by fundamental
principles.

1.1.8 Court of Chancery (also known as ‘Court of Equity’)

Equity is the name given to the set of legal principles, in jurisdictions following the English
common law tradition, that supplement strict rules of law where their application would
operate harshly.

The distinction between "law" and "equity" is an accident of history. The law courts or
"courts of law" were the courts in England that enforced the king's laws in medieval times.
The King's Judges, educated in law rather than theology, administered the universal law of
the realm. This body of law evolved on the basis of previously set precedent into what is
recognised as the Common law of England. However, if changes were not quick enough, or
if decisions by the judges were regarded as unfair, litigants could still appeal directly to the
King, who, as the sovereign, was seen as the 'fount of justice' and responsible for the just
treatment of his subjects. Such filings were usually phrased in terms of throwing oneself
upon the king's mercy or conscience. Eventually, the king began to regularly delegate the
function of resolving such petitions to the Chancellor, an important member of the King's
Council. The early Chancellors were often clergymen or nobles, acting as the King's
confessor and thereby literally as keeper of the King's conscience. As a result of their
theological and clerical training, Chancellors were well versed in the Latin and French
languages as well as in classical Roman civil and canon law, which heavily influenced equity.
Soon the Chancery, the Crown's secretarial department, began to resemble a judicial body
and became known as the "Court of Chancery".

Remedies in equity are discretionary: in other words, they are awarded at the will of the
court and depend on the behaviour and situation of the party claiming such remedies. This
means that, in effect, the court does not have to award an equitable remedy where it
considers that the conduct of the party seeking such an award has been such that the party
does not deserve it (D & C Builders v Rees (1965)).

1.1.9 Civil Law and Criminal Law

Civil Law is a form of private law and involves the relationships between individual citizens.
It is the legal mechanism through which individuals can assert claims against others and
have those rights adjudicated and enforced. The purpose of civil law is to settles disputes
between individuals and to provide remedies. It is not concerned with punishment as such.
The role of the state in relation to civil law is to establish the general framework of legal
rules and to provide the legal institutions to operate those rights, but the activation of the
civil law is strictly a matter for the individuals concerned. Contract, tort and property law are
generally aspects of civil law.

Criminal law, on the other hand, is an aspect of public law and relates to conduct which the
State considers with disapproval and which it seeks to control and/or eradicate. Criminal law
involves the enforcement of particular forms of behaviour, and the State, as the
representative of society, acts positively to ensure compliance. Thus, criminal cases are

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brought by the State in the name of the Crown and cases are reported in the form of Regina
v . . . ( Regina is simply Latin for ‘queen’ and case references are usually abbreviated to R v . .
. ) whereas civil cases are referred to by the names of the parties involved in the dispute, for
example, Smith v Jones . In criminal law, a prosecutor prosecutes a defendant (or ‘the
accused’). In civil law, a claimant sues (or ‘brings a claim against’) a defendant.

In distinguishing between criminal and civil actions, it has to be remembered that the same
event may give rise to both. For example, where the driver of a car injures someone through
their reckless driving, they will be liable to be prosecuted under the Road Traffic legislation,
but at the same time, they will also be responsible to the injured party in the civil law
relating to the tort of negligence.

A crucial distinction between criminal and civil law is the level of proof required in the
different types of cases. In the criminal case, the prosecution is required to prove that the
defendant is guilty beyond reasonable doubt, whereas in a civil case, the degree of proof is
much lower and has only to be on the balance of probabilities. This difference in the level of
proof raises the possibility of someone being able to succeed in a civil case, although there
may not be sufficient evidence for a criminal prosecution. Indeed, this strategy has been
used successfully in a number of cases against the police where the Crown Prosecution
Service (CPS) has considered there to be insufficient evidence to support a criminal
conviction for assault. A successful civil action may even put pressure on the CPS to
reconsider its previous decision not to prosecute. In June 2009 relatives of the victims of the
Omagh bombing in Northern Ireland, which killed 29 people in 1998, won the right to take a
civil case against members of the real IRA, following the failure of a criminal prosecution to
secure any convictions. In approving the action the Judge in the case held that there was
overwhelming evidence against four members of the terrorist group in relation to the
atrocity.

Burden of proof
It is essential not to confuse the standard of proof with the burden of proof. The latter
refers to the need for the person making an allegation, be it the prosecution in a criminal
case or the claimant in a civil case, to prove the facts of the case. In certain circumstances,
once the prosecution/claimant has demonstrated certain facts, the burden of proof may
shift to the defendant/respondent to provide evidence to prove their lack of culpability. The
reverse burden of proof may be either legal or evidential, which in practice indicates the
degree of evidence they have to provide in order to meet the burden they are under.

It should also be noted that the distinction between civil and criminal responsibility is
further blurred in cases involving what may be described as hybrid offences. These are
situations where a court awards a civil order against an individual, but with the attached
sanction that any breach of the order will be subject to punishment as a criminal offence. As
examples of this procedure may be cited the Protection from Harassment Act 1997 and the
provision for the making of Anti-Social Behaviour Orders available under s 1(1) of the Crime
and Disorder Act 1998. Both of these provisions are of considerable interest and deserve
some attention in their own right.

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Private prosecutions
It should not be forgotten that although prosecution of criminal offences is usually the
prerogative of the State, it remains open to the private individual to initiate a private
prosecution in relation to a criminal offence. It has to be remembered, however, that even
in the private prosecution, the test of the burden of proof remains the criminal one
requiring the facts to be proved beyond reasonable doubt.

An example of the problems inherent in such private actions can be seen in the case of
Stephen Lawrence, the young black man who was gratuitously stabbed to death by a gang
of white racists whilst standing at a bus stop in London. Although there was strong
suspicion, and indeed evidence, against particular individuals, the CPS declined to press
charges against them on the basis of insuffi ciency of evidence. When the lawyers of the
Lawrence family mounted a private prosecution against the suspects, the action failed for
want of sufficient evidence to convict. As a consequence of the failure of the private
prosecution, the rule against double jeopardy meant that the accused could not be retried
for the same offence at any time in the future, even if the police subsequently acquired
sufficient new evidence to support a conviction.

The report of the Macpherson Inquiry into the manner in which the Metropolitan Police
dealt with the Stephen Lawrence case gained much publicity for its finding of ‘institutional
racism’ within the service, but it also made a clear recommendation that the removal of the
rule against double jeopardy be considered. Subsequently, a Law Commission report
recommended the removal of the double jeopardy rule and provision to remove it, under
particular circumstances and subject to strict regulation, was contained in ss 75–79 of the
Criminal Justice Act 2003.

In considering the relationship between civil law and criminal law, it is sometimes thought
that criminal law is the more important in maintaining social order, but it is at least arguable
that, in reality, the reverse is the case. For the most part, people come into contact with the
criminal law infrequently, whereas everyone is continuously involved with civil law, even if it
is only the use of contract law to make some purchase. The criminal law of theft, for
example, may be seen as simply the cutting edge of the wider and more fundamental rights
established by general property law. In any case, there remains the fact that civil and
criminal law each has its own distinct legal system.

Table 1: Differences between Criminal and Civil Law

Criminal Law Civil Law

Courts

Aims

Outcomes

Terminology

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Standard of proof

Procedure

1.2.0 The interaction of the court hierarchy and the doctrine of precedent

It is the general rule that decisions made in higher courts are binding upon courts below
them, and to a certain extent on courts at the same level. The way in which the court
hierarchy structures the working of judicial precedent is described below.

Magistrates’ Courts and County Courts

These courts are bound by decisions of the High Court, the Court of Appeal (CA) and the
House of Lords Supreme Court. Magistrates’ and County Courts are not bound by their own
decisions, neither do they bind any other court, although they are expected to exercise
consistent decision-making.

The Crown Court

This court is bound by decisions of the Court of Appeal and the House of Lords/ Supreme
Court. Its decisions – at least those reported as of interest – are generally regarded as
persuasive and worthy of being used in argument, particularly those made by High Court
judges sitting in the Crown Court.

The High Court

The decisions of this court are binding upon all inferior courts, but not upon other High
Court judges, although in practice they rarely go against each other’s decisions. High Court
decisions are not binding upon the Divisional Court (Civil or Criminal), where two or more
High Court judges sit together. All Court of Appeal and House of Lords/Supreme Court
decisions are binding upon the High Court.

The Divisional Courts of the High Court

The decisions of the Divisional Courts of the High Court are binding upon High Court judges
sitting alone and also the inferior courts, except the Employment Appeal Tribunal. The
Divisional Courts are bound by the Court of Appeal and the House of Lords Supreme Court
and also by its own decisions.

The Court of Appeal (Civil Division)

Generally, its decisions are binding upon the Divisional Courts of the High Court, individual
High Court judges and the inferior courts, including the Employment Appeal Tribunal. It
must follow decisions of the House of Lords/Supreme Court. In Young v Bristol Aeroplane Co
Ltd [1944] KB 718, it was held that the CA is bound by its own decisions unless:
▪ it is a CA decision given per incuriam (i.e. with the omission of a very important
component which subsequently flaws the decision)
▪ it involves an earlier conflicting decision by the CA, when the CA may then choose
which case to follow

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 ▪ the earlier CA decision has been expressly or impliedly overruled by the Supreme
Court.

The Court of Appeal (Criminal Division)

This appellate court is bound by House of Lords/Supreme Court decisions and is generally
bound by its own decisions, but not so rigidly as in the Civil Division, since the liberty of the
appellant is often at stake.

The House of Lords

Between 1966 and 2009 (when it was replaced by the Supreme Court), the House of Lords
no longer needed to be bound by its own decisions. The 1966 Practice Statement stressed
that this rule was to be used cautiously, especially in property, taxation and criminal
matters. Great weight is attached to statements made in the House of Lords even when
they are said obiter. Any House of Lords decision can be overridden by an Act of Parliament.
Precedents in other courts may be persuasive depending upon the status of the court, the
reputation of the judge and the country in which it was established.

The Supreme Court

The Supreme Court:
▪ is the final court of appeal for all UK civil cases, and criminal cases from England,
Wales and Northern Ireland
▪ hears appeals on arguable points of law of general public importance
▪ concentrates on cases of the greatest public and constitutional importance
▪ maintains and develops the role of the highest court in the United Kingdom as a
leader in the common law world.

The Supreme Court hears appeals from the following courts in England and Wales:
▪ The CA (Civil Division)
▪ The CA (Criminal Division)
▪ (in some limited cases) the High Court.

(From www.supremecourt.gov.uk/about/role-of-the-supreme-court.html)

1.21 The 1966 Practice Statement and the Supreme Court

Does the 1966 Practice Statement apply to the Supreme Court? In Austin v Mayor and
Burgesses of the London Borough of Southwark [2010] UKSC 28, Lord Hope argued (at
para.25) that:

The Supreme Court has not thought it necessary to re-issue the Practice Statement as a
fresh statement of practice in the Court’s own name. This is because it has as much effect in
this Court as it did before the Appellate Committee in the House of Lords. It was part of the
established jurisprudence relating to the conduct of appeals in the House of Lords which
was transferred to this Court by section 40 of the Constitutional Reform Act 2005.

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So, it is probably the case that the Supreme Court can depart from its previous decisions and
previous decisions of the House of Lords when it considers that ‘it would be right for it to do
so.

The doctrine of binding precedent ensures consistency; but, more broadly, consistency in
decision making is a concern of justice. It is just that the courts follow precedent so that the
law develops coherently. This is fundamental to the idea of law: if law is to be universal, to
apply to all people, it must do so in a way that is principled. There cannot be arbitrary or
unprincipled decisions as this would not be just.

Summary

Ensure that:
▪ you are familiar with the idea of the common law and the role of Parliament
▪ you are comfortable with the idea of precedent as a practice and the concept of
public reason
▪ you understand the nature of law as a mechanism of social control
▪ you can appreciate the categories of law;
o Common Law
o Civil Law
o Acts of Parliament
o Equity
o Criminal Law
▪ you are familiar with the hierarchy of courts

Am I ready to move on to the next chapter?

a. Define due process and the idea of a fair trial.

b. Explain briefly what is meant by judicial law making.
c. What is the relationship between judicial law making and the doctrine of precedent?
d. How is the common law tradition different from the civilian tradition?
e. What are the main sources of law today?

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