Judicial decisions as authorities

House of Lords decisions. The decisions of the House of Lords upon questions of law are normally considered by the House to be binding upon itself, but because too rigid adherence to precedent maylead to injustice in a particular case and unduly restrict the proper development of the law the House will depart from a previous decision when it appears right to do so, although it bears in mind the danger ofdisturbing retrospectively the basis upon which contracts, property settlements and fiscal arrangements have been entered into and the especial need for certainty as to the criminal law. When a broad principle has been clearly decided by the House, thedecision should not be weakened or frittered away by fine distinctions, and an erroneous decision of the House upon a question of law can be set right only by Act of Parliament. A decision of the House of Lords occasioned by members of the House being equally divided is as binding on the House and on all inferior tribunals as if it had been unanimous. Decisions of the House of Lords are binding on every court inferior to it.

Court of Appeal decisions. The decisions of the Court of Appeal upon questions of law must be followed by Divisional Courts and courts of first instance, and, as a general rule, are binding on the Court of Appeal until a contrary determination has been arrived at by the House of Lords.

There are, however, three exceptions to this rule:

(1) the Court of Appeal is entitled and bound to decide which of two conflicting decisions of its own it will follow;

(2) it is bound to refuse to follow a decision of its own which, although not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords;

(3) the Court of Appeal is not bound to follow a decision of its own if given per incuriam. Unlike the House of Lords, the Court of Appeal does not have liberty to review its own earlier decisions.

A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of co-ordinate jurisdiction which covered the case before it, in which case it must decide which case to follow; or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force.

In its criminal jurisdiction the Court of Appeal applies the same principles as on the civil side, but recognizes that there are exceptions:

(a) where the applicant is in prison and in the full court's opinion wrongly so;

(b) where the court thinks that the law was misunderstood or misapplied; and

(c) where the full court is carrying out its duty to lay down principles and guidelines in relation to sentencing.

Divisional Court decisions. A Divisional Court is bound by its own previous decisions, regardless of how many judges are sitting, with limited exceptions in criminal cases, subject always to the per incuriam rule. Faced with conflicting earlier decisions the court is free to decide which to follow. Divisional Court decisions bind judges of first instance, even of a different division, but not the Employment Appeal Tribunal.

Scottish and Irish decisions. Decisions of the Scottish and Irish courts are not binding upon English courts, although entitled to the highest respect. On questions of principle it is desirable that the laws of England and Scotland should be uniform and that a decision of the House of Lords, when founded on principle and not on authority, should be regarded as applicable to both countries, unless the House itself says otherwise. There is a well-settled practice that in revenue and taxation matters courts of first instance in England endeavour to keep in line with the courts of Scotland. Further, an English court ought to follow the unanimous judgement of the higher Scottish and Irish courts, where the question is one which turns upon the construction of a statute which extends to those countries as well as to England, leaving it to be reviewed, if thought fit, by the appeal court, as it is desirable that interpretations should be avoided which result in one meaning in one country and one in another.

Overseas decisions. A decision of an overseas court in a common law country is not of course binding on an English court, but may be useful as a guide to the court to which it is cited as to what its decision ought to be. Thus, for example, great respect is paid to the views of eminent judges of the United States Supreme Court and to decisions of the highest tribunal of the State of New York. English courts should be in keeping with United States courts on carriage by sea and carriage by air, although if English law proved to be different, effect would have to be given to the difference, whatever the inconvenience.

It is desirable that the great common law jurisdictions should not differ lightly, particularly on so universal a matter as commercial law, or the measure of damages, or remoteness of damage, or interpretation, or privilege, or patent law.

Complete the line of words with their synonym from the text. Learn them.

1. strict, rigorous, severe, ____________

2. observance, compliance, keeping with, ____________

3. wrong, mistaken, incorrect, untrue, ____________

4. common, agreed, undivided, ____________

5. rejected, declined, disallowed, repudiated, ____________

6. to abuse, to misuse, ____________

7. identical, standardized, consistent, ____________

8. to try, to attempt, to make an effort, ____________

9. well-known, famous, distinguished, ____________

Translate into Russian the phrases from the text:

1. rigid adherence to precedent, 2. depart from a previous decision, 3. fiscal arrangements have been entered into, 4. the decision should not be weakened or frittered away by fine distinctions, 5. not expressly overruled, 6. the court has acted in ignorance of a previous decision, 7. the law was misunderstood or misapplied, 8. to lay down principles and guidelines in relation to sentencing, 9. conflicting earlier decisions, entitled to the highest respect, 10. founded on principle and not on authority, 11. ought to follow the unanimous judgement, 12. an overseas court, 13. English courts should be in keeping with United States courts.

Define whether the statements are true or false. Explain your choice:

1. The House of Lords never departs from its previous decisions.

2. Decisions of the House of Lords are binding on every court inferior to it.

3. The decisions of the Court of Appeal upon questions of law must be followed by Divisional Courts and courts of first instance.

4. Unlike the House of Lords, the Court of Appeal does not have liberty to review its own earlier decisions.

5. A decision is given per incuriam when the court has acted in keeping with a previous decision of its own.

6. In its criminal jurisdiction the Court of Appeal applies the same principles as on the civil side.

7. Divisional Court decisions don’t bind judges of first instance.

8. Decisions of the Scottish and Irish courts are not binding upon English courts.

9. The laws of England and Scotland are uniform.

10. A decision of an overseas court in a common law country is binding on an English court.

Answer the questions and dwell on the following issues:

1. Whose decisions are binding on every court?

2. Why are the decisions of the House of Lords upon questions of law normally considered by the House to be binding upon itself?

3. To what extent are the decisions of the House of Lords binding on the Court of Appeal?

4. Explain the essence of per incuriam legal practice.

5. Are the decisions of the House of Lords upon questions of law normally considered binding by Scottish and Irish courts?

6. Why is it desirable that the common law jurisdictions should not differ?

Read the text about the appeal system in the USA and get ready for the discussion.

TEXT 5

After judgement has been entered, the losing side has a set period of time to file a notice of its intent to appeal. An appeal is a complaint made to a higher court of an error of law made during the conduct of a case. An appeal cannot be based on supposed errors in factual conclusions. For example, if a videotape made by a bank camera showed a defendant holding a submachine gun during a robbery, the defendant could appeal the judge's decision to allow the jury to see the tape. The appeal could be based on the claim that, as a matter of law the tape would have such an impact on the jury that any and all other evidence could not overcome that impact. The appeal could not be based on the claim that the jury made an improper conclusion of fact once the tape was admitted into evidence.

If a judgement of liability and damages is allowed to stand by the appellate court or courts that review it, the loser has to pay the judgement. If payment is not made “voluntarily” within a set time, the court can order property of the loser seized and sold by the sheriff to satisfy the judgement. Such a court order is called a writ of execution. Any proceeds of the sale remaining after the judgment has been paid are returned to the loser. Rather than seize property, some individuals to whom a judgement is owed will ask the court to order the loser’s wages or bank account paid into the court. Termed a garnishment, such an order is quite effective as it is directed to an established third party, say an employer or a bank, that is much more likely than the loser to comply rather than being held in contempt of court.

Regardless of the method utilized to satisfy the judgement, hopefully it will bring a successful and just conclusion to the elaborate and complex process known as the civil lawsuit.

Find in the text the synonymous expressions to those given below and give their Russian equivalents.

1. to reach a verdict, 2. to lodge an appeal, 3. to influence a jury, 4. to overpass the influence, 5. to confiscate property, 6. profit of the sale, 7. disregard of the court, 8. litigation.

Answer the following questions:

1. What is the reason for lodging an appeal?

2. What could an appeal be based on?

3. In what cases is awrit of execution issued?

4. In what cases is a garnishment quite effective?

DISCUSSION

1. Dwell on the following issues:

· history of the Jury system;

· types of legal cases decided by a jury;

· requirements citizens are to meet to be eligible for juror service;

· the essence of the legal notions: “to decide the facts” (questions of fact) and “to decide the law” (questions of law);

· the aim of the questioning called “voir dire”;

· grounds on which a juror can be challenged;

· the role of the judge in cases decided by the jury;

· whether there is a jury system in Belarus and whether it is similar to the system described above.

2. Point out advantages and disadvantages of the jury system. Discuss them in pairs.

3. Agree or disagree with the statement:

“When you go into court, you are putting your fate into hands of 12 people who weren’t smart enough to get out of jury duty”. (Norm Crosby)

4. How might the following characteristics of the jurors affect their impartiality? In whose favour is the jury likely to be biased:

· the juror is married to the defendant’s cousin;

· the defendant is a young black female and the jury is composed of white middle-aged men;

· the juror is a mother of three young children and the defendant is accused of molesting a five-year-old child;

· the juror has been convicted of several motoring offences and the defendant is accused of dangerous driving?

5. Presume you are a judge on an appellate court. An attorney is appearing before you claiming that new evidence has been discovered that would reverse the result of a recent trial in a lower court and produce instead a holding in his client’s favour. Which of the following factors do you consider important in determining whether or not to grant the new trial:

· the severity of the effect of the result of the loser;

· whether it was a criminal or civil trial;

· how easy it was to find the new evidence;

· the workload of the lower court;

· the likelihood the new evidence would alter the original result?

6. Sum up your knowledge of the appeal systems in England, the USA and in Belarus to compare the following:

· the Supreme appeal body;

· grounds for lodging an appeal;

· covering expenses.

UNIT 5

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