учебный год 2023 / Stare decisis-1

220

THE

MODERN

LAW

REVIEWr

VOL. 14

In

R.

v.

Porter,'

Younghusband

v.

Lvftig

4 and

Nicholas

v.

Penny 2 the Lord Chief

Justice

has repeated

that

the

Divisional

Court is bound by its own decisions

in

exactly

the

same

way

and

subject

to the

same

exceptions

as

the

Court of

Appeal

is

bound

under the rule in Young

v.

Bristol

Aeroplane

Co.,5 and

in

R. v.

Porter

3 he added

that

' if the

Divisional

Court finds

that

the

House

of Lords

has

given

a

decision

which

is manifestly

inconsistent

with

an earlier

decision

of

a lower

court,

whether

there

has

been express

overruling

of

the

earlier

case

or not,

the

Divisional

Court ought

not

to

follow

it. ...

This

will include the case where only one

mem-

ber

of

the

House

of

Lords

has

expressly

stated

that

the

earlier

decision

was

wrong,

but

the

Divisional

Court can

see

that

all

the

Lords who took part in

the

debate

found

that

the

reasoning

was

wrong '.

The

difficulties

arising

in

the

Court

of Appeal

from

the

doctrine

of

implied

overruling

are

considerable,6

and

this

exception

to

the

rule in Young v. Bristol

Aeroplane

Co.5 undoubtedly

detracts

from

the

certainty

of the

law,

which stare decisis seeks to promote.

The

last part of Lord Goddard's

ruling

quoted

above,

however,

would

seem

designed

to

avoid

such

rigidity

as was

shown

by

the

Court of

Appeal

in Consett

Industrial

and

Provident

Society,

Ltd. v. Consett

Iron

Co.,

Ltd.,7

where

that

court

held

itself

bound

by

its

own

previous

interpretation

of

an

Inclosure

Act

of

1773,

although

in

the

meantime

in the

House

of Lords another

Inclosure

Act of 1757

had

been

interpreted

in

a different

way;

one

member

of the

Lords

considered

the

interpretation

of the

1773

Act in the Court of Appeal

to

be

wrong,

and

two

thought

it

distinguishable,

but

the

whole

trend of

the

argument

in

the

Lords

was contrary

to

that

used in

the

Court

of

Appeal.

According

to Lord

Goddard's

ruling,

how-

ever,

only

one

member

of the Lords need have ' expressly

stated'

that

the

earlier decision

was

wrong,

but

' the

Divisional

Court

can

see that all the Lords who took part in

the debate

found

that

the

reasoning

was

wrong

';

that

is,

all

but

one of the Lords must

be

seen to have found something

which they

did

not

expressly

state.

This seems to call for

no

small

measure

of

ingenuity

from

the

Divisional

Court

in

interpreting

their Lordships'

judgments.

The

Lord

Chief

Justice

is

certainly

not

unaware

of

the

possible

hardship

inherent

in

the

doctrine

that

a

Court

of

Appeal

is

bound

by

its

own

previous

decisions.

Thus

in

Moore

v.

Hewitt

8

the

Divisional

Court

considered

itself

bound

by

the

decision

in

John-

son v. Pritchard,

of which

reports

had

appeared

only in the Justice

of

the

Peace

Newspaper

and

the

Law

Tirtes

Newspaper,

and

the

3

[1949]

2 K.B. 128, 132, 133.

4

[1949]

2 K.B. 354, 361.

? [19441 IK.B. 718.

(1947), p. 349 and (1950), p. 432.

6 See Cambridge Law Journal

7

[1922] 2 Ch. 135.

s

[1947]

K.B. 831, 841.

APRIL 1951

NOTES

OF CASES

221

Lord

Chief

Justice

remarked8

:

I

hope

that

Johnson

v. Pritchard

may some day be considered

in

a higher

court,

but sitting

in

this

court

I

think

we

are bound

by

it,

although

we

have

not

had

the

advantage

of

seeing

any

report

which

shows

the

reasoning

of

the

court'.

The

fact

that

the

Divisional

Court

is

the final

court

of

appeal

for

cases

tried

before

justices

has

been

stressed

elsewhere

by the Lord Chief Justice

as

a

reason

for

holding

it

bound

by

its

own

decisions,

and

it is a

little

curious

that

he

should

here

express

a hope for

review

in

a higher

court.

In the Court of Criminal

Appeal,

however,

the

Lord

Chief

Justice

has

recently

stressed

the

different

considerations

attaching

to

the

doctrine

of

stare

decisis in

civil

and

in

criminal

matters,

and

in

R.

v.

Taylor

9 he

laid

down:

' This court has to deal with ques-

tions

involving

the

liberty

of

the

subject,

and

if

it

finds,

on

recon-

sideration,

that,

in

the

opinion

of a full court assembled

for

that

purpose,

the law

has

been

either

misapplied

or misunderstood

in a

decision which has been previously

given,

and

that,

on the

strength

of

that

decision,

an

accused

person

has

been

sentenced

and

im-

prisoned,

it is the

bounden

duty

of the

court

to reconsider

the

earlier

decision

with

a

view

to seeing

whether

that

person has

been

pro-

perly

convicted.

The

exceptions

which

apply

in

civil

cases

ought

not to be the only

ones

applied

in such a case as the present'.

The

Divisional

Court

also

deals

with

precisely

similar

questions

involving

the liberty

of

the

subject,

but

there

the

exceptions

which

moreover,

it

would

seem that the Lord Chief

Justice

has

himself

expressly

closed

any

possible

escape

from the

binding

force

of

pre-

vious decisions in that court

by

the

expedient

of

summoning

a full

court to overrule

an undesirable

decision.

Thus

whereas

in Edwards

v.

Jones,?1

speaking

of

a

previous

Divisional

Court

decision

in

Rodgers

v. Richards

11 the

All

England

Reports

quote him as say-

ing:

'I

should

have

no

hesitation,

if

necessary,

in differing from

the

decision

in

that

case,

not

merely

12 because

we

are sitting

now

as a court of three and that was

a court of two,

but

also 12 because

the

case

was

not

argued

for

the

defendants,

who

did

not

appear

authority

of

a

case which

has

been

fully

argued',

in

the

Law

Reports,

the

words

merely

and

also are omitted. More definitely in

Younghtusband

v.

Lutftig

3

he

said:

'A

Divisional

Court of

five

judges has no greater powers than one of three or even two.

This

court is

bound

by

its

own

decisions

as

is the Court of Appeal,

whatever

the number of judges that may

constitute

it ',

neverthe-

less ' when re-argument

is directed

it is often

desirable

that

it should

222

THE MODERN LAW REVIEW

VOL. 14

take

place

before

a

full

court'.

The learned

Lord Chief

Justice

did

not

enlarge

upon

the

reasons

why

re-argument

should

be

desirable

before

a full court

which

has no

greater powers

than

any

of its

divisions.

From

this judgment,

however,

it would

seem

that

the

Divisional

Court

may

not consider

itself

bound

by

a

decision in a

case

which

has not been argued on

both

sides,

and

this

appears

to be

borne

out by the All England

Reports

(followed

in Current Law) of the

judgment

in

Nicholas

v.

Penny

14 in

which

the

Lord Chief

Justice

is quoted

as

saying:

'We

can,

however,

always

differ

from

a

case

on the ground that it has not been argued on both

sides

'.

Again

there

is

a discrepancy

in

the

reports

and

the

Law

Reports

1

give

the

judgment

as

reading:

'That'

(previous)

' case

is

not

a

very

satisfactory

one

because

the

prosecution

was

not

represented

on

appeal,

and

a case

which

has

not

been

argued

on

both

sides

has

nothing

like

the

weight

of

authority

of

one

which

has

been

fully

argued.

But

without

necessarily

saying

that

we

can

always

diger

16

from

a

previous

decision

of

the

Divisional

Court merely

because

it

that

decision

. . .' (because

the

previous

decision

had

been

made

per incurianm, material

cases

not

having

been

brought

to

the

court's

attention).

The

ruling

that

a decision

in

a case

argued

only

on

one

side

has

nothing

like the weight

of authority

of one that has been fully

argued

seems

to indicate

a wide

gulf

between

the

authority

of

such

a case

and one

fully

argued,

but

the

practical

effect is

said

to

be

that

the

court will not ' necessarily'

be

able to differ

from

the

finding

in

the previous

case, at least not always

and

not

merely

because

the

previous

case

was

argued

only

on

one

side.

The

precise

limit

of

these

various

provisions

is

obscure,

and

the resulting

measure

of

uncertainty

quite

considerable.

In

Carr v.

Mercantile

Produce

Co.,

Ltd.,'7

the

Lord

Chief

Justice,

speaking

in

the Divisional

Court,

further

laid

down

that:

' Where

it is a case of the true construction

of a section

and

of what

in

relation

to

a particular

section

it

is necessary

to

prove

to

show a

breach of

the

factory

owner's

obligations,

a judgment

of

the

Court

of

Appeal

is just

as binding

on this

court,

though

we may be

con-

sidering

a

criminal

prosecution,

as

though

we

were

trying

a

civil

action.

To hold

otherwise would

be to make

a serious

inroad

on the

rule of

stare

decisis

on

which

so

much

of

English

jurisprudence

depends

'.

This

seems

contrary

to

the

decision

in

R.

v. Taylor 18

in

the

Court

of

Criminal

Appeal.

Can

it

be

that

the

liberty

of

14

[1950]

2 All

E.R.

89,

91.

15

Ubi supra, note 2.

16

My

italics.

17

[1949]

2 K.B.

601.

18

Ubi supra, note 9.

APRIL 1951

NOTES OF CASES

223

ing on this

court, as are decisions of the Court of Appeal, and if

we find that

a decision of the Court of Appeal is inconsistent with

224

THE MODERN LAW REVIEW

VOL-.14

rapidly

is

the

rigour and

extent

of stare decisis

increasing.

True,

the

question

at

issue

in

R.

v.

Northutmberland

Compensation

Appeal

Tribunal

2

is a procedural

one,

having

no direct relation to

penal

consequences,

but no

such distinction

was

adverted

to in the

judgment

and

the

rule

that

' decisions

of the

lIouse

of

Lords

are

binding

on this court,

as

are decisions

of the

Court of Appeal

' was

stated

in the

most general

terms.

The

principle

that superior courts of jurisdiction

are

bound

by

their

own

previous

decisions

is

of comparatively

recent

origin.

In

the

House

of Lords

it was finally laid down only in 1898 26; it was

first

applied

in the

Court

of Appeal in Young v. Bristol Aeroplane

Co.27

in

1944,

and

in the

Divisional

Court in 1947.28

It

is

curious

that such a doctrine based

on

the

paramount

importance

of

cer-

tainty

in

law

as

opposed

to growth

or

change,

should

have

been

enunciated

at

a

time

of

widespread

economic

and

social

change,

when

Parliamentary

time

is

more

fully

occupied

than

at

any

pre-

vious

period

and

the

possibilities

of

Parliamentary

revision

of

judicial

decisions

correspondingly

lessened.

Is

such

a

doctrine,

imposed

at

such

a time,

indeed

conducive

to

the

most

efficient

administration

of

justice?

Moreover,

when

the

legislature

of

what

has

fairly

suddenly

become

a partially

controlled

economy

is

con-

stantly

adding

to

the

number

of

statutory

offences

triable

sum-

marily,

is it

desirable that

the final

court

of appeal for such

offences

decessors,

but

also

by those

of a superior court,

such as the Court of

Appeal, which

is expressly excluded

by

Statute

from

jurisdiction

in

any criminal

cause or matter?

Such

questions

as these must some-

times trouble

the

mind

of

the

practising

lawyer,

driven

by

an

increasingly

restrictive

doctrine

into

the

more

rarified forms

of

distinguishing

in an

attempt

to

circumvent

the

undesirable

effects

of the new rule.

O. M. STONE.

[Since

the

above

note

went to press

the

report

of R. v. Fulham,

been

received

([1951]

1 All E.R.

482).

The above

conclusions

are

not,

however,

affected

by

this decision in which

the

Divisional

Court

merely took

a restrictive

view

of its

previous

decision in

R.

v.

Keats

([1950]

2 All E.R. 138).

There

is,

of course, ample authority

for a later court to hold that

while

an

earlier

decision

is

binding

upon

it, the

ratio decidendi

of that

decision

was

too

widely