Introduction
The legal system of England and Wales is organised around a distinct hierarchy of courts. This structure is not merely an administrative arrangement but is fundamental to the operation of the law, particularly regarding the system of appeals and the doctrine of judicial precedent. This essay will describe the civil and criminal court hierarchy and explain how this structure provides the necessary foundation for the doctrine of stare decisis, or judicial precedent. It will be argued that the hierarchy is the principal mechanism through which the law achieves a necessary balance between certainty, consistency, and the flexibility required for the law to evolve over time. The essay will first outline the respective court structures before analysing their direct relationship with the principles of precedent.
The Civil and Criminal Court Structures
The court system in England and Wales is divided into two main, parallel hierarchies for civil and criminal matters, although they converge at the most senior levels. The structure was significantly reformed by the Constitutional Reform Act 2005, which established the Supreme Court as the final court of appeal, enhancing the separation of powers by moving the highest judicial function out of the House of Lords.
In the criminal justice system, cases begin in the Magistrates' Courts. These courts deal with approximately 95% of all criminal cases, which are summary (less serious) offences. They also handle preliminary hearings for more serious cases. More serious offences, known as indictable offences, are heard in the Crown Court. The Crown Court also hears appeals from the Magistrates' Courts and conducts jury trials. From the Crown Court, a party may appeal on a point of law, or against sentence or conviction, to the Court of Appeal (Criminal Division). The final route of appeal is to the Supreme Court, but only if the case involves a point of law of general public importance (Courts Act 1971).
The civil justice system operates similarly. The majority of civil disputes, such as contract or tort claims, start in the County Court. More complex or high-value cases are initiated in the High Court, which is divided into three divisions: the King’s Bench Division, the Chancery Division, and the Family Division. Appeals from a decision in the County Court or the High Court are generally heard by the Court of Appeal (Civil Division). As with the criminal route, the final appeal court is the Supreme Court. Its decisions are binding on all lower courts in the English and Welsh legal system. Sitting outside this domestic hierarchy, but of historical and continuing importance, is the Judicial Committee of the Privy Council (JCPC). The JCPC is the final court of appeal for several Commonwealth countries and UK overseas territories. While its decisions are not binding on English courts, they are considered to be highly persuasive, especially as the JCPC is typically composed of the same Justices who sit in the Supreme Court.
The Role of Hierarchy in Judicial Precedent
The primary function of the court hierarchy is to facilitate the doctrine of judicial precedent, often referred to by the Latin maxim stare decisis et non quieta movere ('to stand by decisions and not disturb the undisturbed'). This doctrine requires that the legal principles established in the decisions of higher courts are binding on courts lower in the same hierarchy. As a result, the hierarchical structure is what gives precedent its authority and ensures its consistent application.
The binding element of a judgment is the ratio decidendi, which is the legal reasoning essential to the court's decision on the facts before it. Any other statements made by a judge that are not part of this essential reasoning are known as obiter dicta ('things said by the way'). While obiter dicta are not binding, they can be a source of persuasive authority for judges in later cases (Elliott and Quinn, 2022). For example, the ratio decidendi in Donoghue v Stevenson [1932] AC 562, which established the 'neighbour principle' in negligence, has been a binding precedent followed and applied by countless lower courts in subsequent decades.
The rules of precedent are strict. The Supreme Court binds all courts below it. The Court of Appeal is bound by the Supreme Court and, subject to certain exceptions, by its own previous decisions. The High Court is bound by the courts above it but binds the courts below it, such as the County Court. This vertical nature of precedent means a judge in the County Court cannot disregard a relevant decision from the Court of Appeal, even if they believe it to be incorrect. This rigidity ensures that the law is applied uniformly across the country, providing predictability and consistency for litigants (Holland and Webb, 2019). Without the clear ranking of courts, it would be impossible to determine which of two conflicting judgments should be followed, leading to legal chaos.
Certainty and Flexibility within the Hierarchy
The system of precedent, underpinned by the court hierarchy, is prized for promoting legal certainty. Citizens and their legal advisers can have a degree of confidence in predicting how a legal issue will be resolved by referring to past decisions. This fosters respect for the judicial system and allows individuals and businesses to organise their affairs on the assumption that the law is stable.
However, a system that was purely rigid would prevent the law from adapting to new social, economic, and technological developments. For this reason, the doctrine of precedent contains mechanisms that provide a degree of flexibility. The most significant of these is the power of the Supreme Court to depart from its own previous decisions. Following the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234, the House of Lords (and now the Supreme Court) declared that while it would treat its past decisions as normally binding, it would depart from them 'when it appears right to do so'. This power is used sparingly to avoid undermining legal certainty but allows the highest court to correct past errors or develop the law. A notable example is R v Shivpuri [1987] AC 1, where the House of Lords overruled its own very recent decision in Anderton v Ryan [1985] AC 560 on the law of criminal attempts, admitting the earlier decision had been wrong.
Lower down the hierarchy, the Court of Appeal is generally bound by its own past decisions. However, in Young v Bristol Aeroplane Co Ltd [1944] KB 718, the court identified three key exceptions: (1) where there are two conflicting decisions of its own, it must choose which to follow; (2) where its own previous decision has been implicitly overruled by the Supreme Court; and (3) where a decision was made per incuriam (through lack of care, by failing to consider a relevant statute or precedent). Furthermore, judges at all levels can use the tool of 'distinguishing' to avoid following a precedent. If a judge can identify a material difference between the facts of the case before them and the facts of the case that set the precedent, they can argue that the earlier ratio decidendi does not apply. These mechanisms ensure that the doctrine of precedent does not become an obstacle to achieving justice in individual cases or to the necessary evolution of the common law.
Conclusion
In conclusion, the hierarchy of courts is the institutional backbone of the English legal system. It provides a clear pathway for appeals and, more importantly, it is the essential framework upon which the doctrine of judicial precedent operates. By establishing which courts have the authority to bind others, the hierarchy ensures that the law is applied in a consistent and predictable manner, a key component of the rule of law. While this creates a system that values certainty and stability, it is not entirely inflexible. Through the mechanisms of overruling, distinguishing, and the limited exceptions available to the Court of Appeal, the judiciary has the tools to adapt the common law to changing societal values and to correct past errors. Therefore, the court hierarchy successfully facilitates a legal system that balances the competing demands of certainty in the present and the capacity for development in the future.
References
Anderton v Ryan [1985] AC 560
Constitutional Reform Act 2005
Courts Act 1971
Donoghue v Stevenson [1932] AC 562
Elliott, C. and Quinn, F. (2022) English Legal System. 23rd edn. Pearson.
Holland, J. and Webb, J. (2019) Learning Legal Rules: A Students' Guide to Legal Method and Reasoning. 10th edn. Oxford University Press.
Practice Statement (Judicial Precedent) [1966] 1 WLR 1234
R v Shivpuri [1987] AC 1
Young v Bristol Aeroplane Co Ltd [1944] KB 718
