Revisiting the Precedential Status of Crown Court Decisions

The Case of R v X Ltd

In R v X Ltd, ⁵ the Court of Appeal case alluded to above, counsel had attempted to rely on a prior first instance decision made by a Recorder in the Crown Court. That was greeted with judicial surprise and scepticism. Some wonderment was expressed at why such a decision had been reported; once the pulse reverted to normal the Court of Appeal peremptorily dismissed the authority of that decision, saying that its reasoning was unpersuasive for the purposes of the instant case. ⁶

What is of present interest is the court’s further statement that that particular Crown Court decision had no authoritative value, being one made at first instance by a judge neither of the High Court nor sitting in the High Court. ⁷ This somewhat elliptical pronouncement was made without supporting authority, and indicates three possibly separate reasons for the refusal to give the decision any precedential standing.

The first reason is that the decision was made at first instance rather than on appeal. The second is that it was decided by a judge of lower rank than a High Court Judge. And the third is that it was decided in a court that was below the High Court in hierarchy. The Court of Appeal’s ruling could be read as suggesting that all three of these factors must be apparent before the authority of the decision in question is negatived. Another reading, admittedly attributing meaning not immediately detectable from the court’s choice of language, is that the presence of only some, but not all, of those factors is sufficient to deny the decision its precedential status.

The former reading is not attractive primarily because of the difficulties in ascribing dispositive significance to some of the enumerated factors. Let us take them in turn. Whether the doctrine of precedent should differentiate between a first instance decision and a decision made on appeal, both of which are issued in the same court, is an issue possessed of divergent authority. On the one hand, Master McCloud recently observed such a differentiation, ⁸ and the Divisional Court is said to only bind itself when acting in its appellate but not supervisory capacity. ⁹ This seems though to open up the result to a considerable degree of arbitrariness, since the same point of law could have arisen on appeal or at first instance; according precedence to one decision but not the other is unproductive of the predictability desired. ¹⁰ Such a form of distinction was indeed rejected in Coral Reef Ltd v Silverbond Enterprises Ltd. ¹¹ It might once have been a rebuttal that the law was deliberated upon more closely on appeal than at first instance, but the industry of judges and counsel combined with their access to case law ¹² means that any difference in quality is, even accounting for the practice in jury trials, ¹³ more theoretical than real nowadays. ¹⁴ It can consequently be argued with some force that the doctrine of precedent ought not to distinguish between a Crown Court decision made at first instance and one made on appeal from any of the Magistrates’ Courts.

The second factor is that the case has been decided by a judge lower in rank than a High Court Judge. There are again conflicting authorities on whether rank matters in determining precedence as between the decisions of higher and lower courts. In R v Thompson, ¹⁵ Master Gordon-Saker reasoned that since a decision of a Judge made in High Court proceedings was binding on a Costs Judge, it would be illogical if a decision of a High Court Judge sitting in the Crown Court were not. ¹⁶ However, Master Rowley in R v Jagelo ¹⁷ declined to follow the decision of a High Court Judge made in the Crown Court; he said that it would be an unattractive proposition if the decision of a Crown Court Judge who was not a High Court Judge was only persuasive, but a decision of a High Court Judge was binding notwithstanding that it was made in the same court. ¹⁸ Implicit support for the latter position may be located in R v Hertsmere Borough Council, ex parte Woolgar ¹⁹ and R v Southwark London Borough Council, ex parte Bediako, ²⁰ both of which explain that a High Court Judge and a Deputy High Court Judge—who is obviously of lower rank—are when sitting in the High Court bound only by comity and not a rule of strict precedent to follow each other.

The Court of Appeal’s earlier decision in Howard de Walden Estates Ltd v Aggio ²¹ appears though to have put to rest any doubt that the operation of the doctrine of stare decisis between courts at different levels depends on the positions of the courts rather than of the judges hearing the cases. It was ruled there that the County Court was bound by the decisions of judges sitting in the High Court, whether made at first instance or on appeal, because the County Court was inferior to and lower in the hierarchy than the High Court. ²² In a relationship between lower and higher courts, it seems appropriate that court hierarchy should determine the relative precedential status of their decisions. ²³ That particular exercise requires comparison of a stable and outwardly discernible quality of judgments. Using the rank of the deciding judge ticks the discernibility box but not the stability box, because in the system to which we are accustomed judges of different age, rank and seniority can potentially hear the same types of cases. Using the position of the deciding court, however, ticks both boxes. The importance of this as regards Crown Court practice is not to be underestimated when one considers that the list of judges allowed to sit includes High Court Judges, Circuit Judges and Recorders, not to mention their respective deputies where permissible.

It is therefore the third factor—that the decision was made by a court below the High Court in the hierarchical order—which appears or should appear as critical in the pronouncement in R v X Ltd that Crown Court decisions have no authoritative value. The way in which the Court of Appeal has elucidated the position suggests that the deficiency is absolute in its view. That is not how some understand the current practice; as alluded to earlier, according to R v Thompson a decision of a High Court Judge, made when sitting in the Crown Court, exerts binding force on a Costs Judge. Although not universally accepted, it remains possible to contend that this is one instance in which decisions of the Crown Court carry precedential authority.

Recent Developments

Two developments have now called into further question the unqualified nature of the rule seemingly pronounced in R v X Ltd.

The first is a strong and consistent line of authority that the Upper Tribunal, being a superior court of record, ²⁴ is empowered to set precedent. ²⁵ Its decisions therefore have precedential value at least with respect to the First-tier Tribunal, from which appeals to the Upper Tribunal generally lie. The greater debate has been over whether the Upper Tribunal itself is strictly bound by decisions of the High Court, an issue which requires elaboration later, but for present purposes the point is that the Crown Court is also a superior court of record ²⁶ that hears appeals from the Magistrates’ Courts. By the same logic it ought theoretically to possess power to set precedent, disregarding any remnant historical incumbrances. The Upper Tribunal being primarily a civil tribunal does not appear to be a relevant difference in this regard. There is in fact no persuasive reason why reasoned rulings of law by the Crown Court judiciary—largely drawn from senior members of the criminal Bar—should today be viewed as so exceptionally deficient than those as emanate from other superior courts of record. A significant number of cases are heard at Crown Court level and important decisions will be handed down from time to time.

The other development has been the modern retrievability of written decisions, for if the lack of systematic publication of Crown Court decisions was formerly the chief reason why they were seen to lack formal binding effect, that now requires fresh evaluation in light of contemporary innovations in database and recordkeeping technology.

As an initial remark, there should of course be heeded the salutary warning given by Robert Megarry, made prior to his judicial ascent, that a decision ought not to be rejected out of hand merely because there was no orthodox report of it. ²⁷ In Beach v Smirnov, ²⁸ Ouseley J rejected any suggestion that a High Court decision appearing in the White Book held greater authority than other High Court decisions which did not. ²⁹ And, even more pertinently, it was stated in Coral Reef that the ready availability of decisions by Masters ought not to be a determinative consideration as regards their precedential status, because the doctrine of precedent had to operate regardless of whether the decisions of a particular court were readily available or not, and its scope could not be altered by changing practice in the distribution of judicial decisions over time. ³⁰

It must be realised though that any move towards according some binding effect to reasoned decisions of the Crown Court has to be accompanied by an increase in their accessibility. A system of precedent is unable to function effectively or consistently if there is no outlet into public consciousness for the rulings handed down. ³¹ That parallel necessity can now potentially be fulfilled by the systematic electronic dissemination of such decisions or, at the very least, the full transcripts via online databases. ³² The institution of an appropriate practice for Crown Court decisions would promote their wider availability. Under present English law they do not have to find a home in an official series of published reports to have binding effect. ³³ Any risk of the courts then being swamped by an avalanche of case law could be mitigated through the issuance of procedural orders or practice directions, ³⁴ which currently state that an unreported case is not usually to be cited in court unless it contains a relevant statement of legal principle not found in reported authority. ³⁵ The eventual solution may be to tap on advanced technology to ensure that counsel cite only the appropriate rulings in court.

Relationship Between Upper Tribunal and High Court

Since the reorganisation of the tribunals system, the Upper Tribunal has liberated itself from having to strictly follow decisions of the High Court. In 2010 it held that, where it was exercising a jurisdiction formerly exercised by the High Court, it would not be bound by that court’s decisions but would, unless convinced they were wrong, follow them out of comity. ⁴⁰ The position was thus the same as where the High Court handled decisions of co-ordinate jurisdiction, with one qualification that the Upper Tribunal, when dealing with highly specialised legislation, might in a proper case feel less inhibited in revisiting issues decided at High Court level. These opinions were not commented upon when the case reached the Court of Appeal. ⁴¹

The Upper Tribunal has continued to press this freedom. ⁴² Gilchrist v Revenue and Customs Commissioners ⁴³ contains an instructive discussion. There the tribunal reasoned that it was ultimately a matter of parliamentary intention whether the Upper Tribunal was bound by High Court decisions. The legislative establishment of the Upper Tribunal as a superior court of record, with power to set precedent, together with the exclusion of the High Court from the appeal process or structure, strongly suggested that the Upper Tribunal was not bound by decisions of the High Court. ⁴⁴ There were no indications to the contrary. Advisers would not be placed in difficulty by having to face conflicting decisions of the High Court on the one hand and those of the Upper Tribunal on the other, any more than if there were two conflicting High Court decisions. The need for certainty was not offended by the Upper Tribunal departing from High Court decisions.

The tribunal in Gilchrist considered all of this to be unaffected by R (Cart) v Upper Tribunal, ⁴⁵ in which the Supreme Court had ruled that the High Court retained a supervisory jurisdiction in respect of ‘unappealable decisions’ of the Upper Tribunal. In the tribunal’s view, the issue of supervisory jurisdiction was conceptually distinct from the question of precedent:

[T]he existence of a supervisory jurisdiction on the part of the High Court over the Upper Tribunal does not imply that the Upper Tribunal is bound by the decisions of the High Court, as a matter of stare decisis. The ratio of Cart’s case, concerning the grounds of judicial review of unappealable decisions of the Upper Tribunal by the High Court, has no application to the question of whether the Upper Tribunal is bound by decisions of the High Court in substantive matters. ⁴⁶

Relationship Between Crown Court and High Court

Viewed against what has been said of the Upper Tribunal, the important features of the Crown Court appear to be the following. It is a superior court of record, ⁴⁸ from which appeals generally proceed to the Court of Appeal. ⁴⁹ A limited subset of its decisions and exercise of jurisdiction is subject to the review and supervision of the High Court. ⁵⁰ This fact does not of itself negate the possibility of substantive Crown Court decisions being of co-ordinate status as High Court decisions, if the reasoning in Gilchrist is found to be similarly applicable. Nor should it be relevant for the doctrine of precedent that the Crown Court has no power to unilaterally make practice directions for criminal procedure in that court or the Magistrates’ Courts ⁵¹ ; if that were otherwise a similar disability would, for instance, improbably afflict the Court of Appeal, Criminal Division.

Importantly, for the court or tribunal in question not to be bound by the High Court, the particular line of reasoning in Gilchrist would require it to be exercising a jurisdiction formerly exercised by the High Court. ⁵² The question is whether this element must be present before the Crown Court may be freed from having to follow an otherwise covering High Court decision. The answer, it is suggested, is no. The Upper Tribunal was created in part to replace the High Court as the judicial forum for resolving certain types of cases, and it is therefore understandable, from the perspective of ensuring future consistency of decision-making in that forum, why it was seen to be a vital requirement for the Upper Tribunal to be exercising jurisdiction formerly belonging to the High Court. In relation to the Crown Court, however, what is relevant is not so much the historical fact that it is the successor to the courts of quarter sessions and assize courts, but that among the matters it decides are trials of, and sentencing for, indictable offences, over which the Crown Court has exclusive jurisdiction ⁵³ ; that most criminal appeals from the Magistrates’ Courts will lie to the Crown Court, which, although not a decisive consideration, does mean that that court is best placed to swiftly and consistently correct errors of law below; and that those cases which exhibit signs of involving more intricate discussion of a point of law are generally heard or reserved for hearing by more senior judges, such as High Court Judges or Circuit Judges.