This paper will describe the effect of the new Supreme Court judgment in R v Thomas on the court structure of England and Wales. It will address the principle of judicial precedent, the methods of law reporting, and the ways in which a binding decision might be lawfully avoided. Finally, it will consider how this analysis would differ if the judgment had been delivered by the Court of Appeal (Criminal Division).
The Effect of the Supreme Court's Decision
The English legal system operates under the doctrine of judicial precedent, also known as stare decisis, which means to 'stand by things decided'. This doctrine creates certainty and consistency in the law by ensuring that similar cases are treated in a similar way (Slapper and Kelly, 2017). The doctrine is based on the hierarchy of the courts.
The Supreme Court is the final court of appeal in the United Kingdom for criminal cases from England, Wales, and Northern Ireland. As the highest court, its decisions are binding on all courts below it in the hierarchy. This principle is called vertical precedent. Therefore, the legal rule, or ratio decidendi, established in R v Thomas [2016] UKSC 12 must be followed by the Court of Appeal, the High Court, the Crown Court, and the Magistrates’ Court. These lower courts have no authority to disregard or overrule a decision of the Supreme Court.
Interestingly, the Supreme Court itself is not bound by its own previous decisions. This power was established for its predecessor, the House of Lords, in the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 and was confirmed as applying to the Supreme Court in Austin v Southwark London Borough Council [2010] UKSC 28. This allows the highest court to adapt the law to changing social conditions, although it uses this power sparingly to maintain legal certainty.
The Reporting of the Decision
A judgment from the Supreme Court is considered of high public and legal importance. Consequently, the decision in R v Thomas will be extensively reported. An official transcript of the judgment will be published on the Supreme Court's own website, often on the day it is handed down.
Following this, the case will be published in various series of law reports. The most authoritative reports are The Law Reports, published by the Incorporated Council of Law Reporting (ICLR). A Supreme Court decision would appear in the Appeal Cases (AC) series. It would also be found in other major series, such as the Weekly Law Reports (WLR) and the All England Law Reports (All ER), and specialist criminal reports like the Criminal Appeal Reports (Cr App R). These reports are available in print and through online legal databases such as Westlaw and LexisNexis. Free-to-access services like BAILII (the British and Irish Legal Information Institute) also publish transcripts of judgments from senior courts.
Avoiding the Supreme Court's Decision
While lower courts are bound by the decision in R v Thomas, a judge in a later case who disagrees with the ruling is not entirely without options. The primary method a judge in a lower court can use to avoid following a binding precedent is distinguishing.
To distinguish a case, the judge in the lower court must demonstrate that the material facts of the case before them are sufficiently different from the facts of the precedent case (R v Thomas). If the facts are different in a legally relevant way, the judge can argue that the earlier precedent does not apply to the current case. It is important to note that this does not challenge the correctness of the Supreme Court's ruling; it merely confines its application to the specific facts upon which it was decided.
Furthermore, not everything said in a judgment is binding. Only the ratio decidendi (the reason for the decision) is binding. Other comments made by the judges, known as obiter dicta (things said 'by the way'), are not binding. These remarks can be persuasive, but a lower court is not obliged to follow them.
A Judgment from the Court of Appeal
If R v Thomas had been a decision of the Court of Appeal (Criminal Division), the position would be significantly different.
First, while the decision would still be binding on all lower courts (the High Court, Crown Court, and Magistrates' Court), it would not be binding on the Supreme Court. The Supreme Court would be free to review the Court of Appeal’s decision in a future case and, if it disagreed, overrule it.
Second, the Court of Appeal is generally bound by its own past decisions. This rule was established in Young v Bristol Aeroplane Co Ltd [1944] KB 718, which provided three exceptions:
- Where there are two conflicting decisions of the Court of Appeal.
- Where a previous decision of the Court of Appeal has been implicitly overruled by a later Supreme Court (or House of Lords) decision.
- Where a decision was made per incuriam (by mistake, for example, by failing to consider a relevant statute or precedent).
Crucially, the Criminal Division of the Court of Appeal has an additional flexibility. Recognising that a person's liberty is at stake, the Criminal Division can depart from a previous decision if it believes the law was misapplied or misunderstood in the earlier case (R v Gould [1968] 2 QB 65). This is a vital exception that prioritises justice over the strict consistency of precedent in criminal matters. Therefore, if R v Thomas were a Court of Appeal decision, another panel in the same court could, in a later case, choose not to follow it if they were convinced it was wrong and it was in the interests of justice to depart from it.
References
Austin v Southwark London Borough Council [2010] UKSC 28
Practice Statement (Judicial Precedent) [1966] 1 WLR 1234
R v Gould [1968] 2 QB 65
Slapper, G. and Kelly, D. (2017) The English Legal System. 18th edn. Routledge.
Young v Bristol Aeroplane Co Ltd [1944] KB 718
