Revisiting the Precedential Status of Crown Court Decisions

AuthorKwan Ho Lau
Published date01 February 2021
Date01 February 2021
Subject MatterArticles
CLJ954177 17..25 Article
The Journal of Criminal Law
2021, Vol. 85(1) 17–25
Revisiting the Precedential
ª The Author(s) 2020
Article reuse guidelines:
Status of Crown Court
DOI: 10.1177/0022018320954177
Kwan Ho Lau
Singapore Management University, Singapore
The binding authority of substantive decisions made by the Crown Court in the exercise of its
criminal jurisdiction is often assumed to be negligible. In 2013, the Court of Appeal appeared to
confirm the correctness of that assumption. Yet there was little in the way of explanation or
case law that was cited in support by the court. This article suggests that a re-evaluation of the
place and treatment of such decisions within the doctrine of precedent is overdue, and
considers that they should be recognised to have some binding effect if there is able to be
established a reasonably satisfactory process to facilitate their systematic and public
dissemination, whether electronic or otherwise.
Crown Court, precedent, stare decisis, judges, authority
A number of commentators have suggested that decisions of the Crown Court possess no formal
binding force.1 Many viewed the lack of systematic reporting of such decisions to be the major
1. R Cross, Precedent in English Law (Clarendon Press, Oxford 1961) 6 (originally in respect of quarter sessions, subsequently
updated in later editions to cover the successor Crown Court; see R Cross, Precedent in English Law (3rd edn Clarendon Press,
Oxford 1977) 7); A Ashworth, ‘The Binding Effect of Crown Court Decisions’ [1980] Crim LR 402; D Feldman, ‘Regulating
Treatment of Suspects in Police Stations: Judicial Interpretation of Detention Provisions in the Police and Criminal Evidence
Act 1984’ [1990] Crim LR 452; R Cross and JW Harris, Precedent in English Law (4th edn Clarendon Press, Oxford 1991) 123;
K Kerrigan, ‘Miscarriage of Justice in the Magistrates’ Court: The Forgotten Power of the Criminal Cases Review Commission’
[2006] Crim LR 124, 138; T Ingman, The English Legal Process (13th edn OUP, Oxford 2011) 209; P Morgan, ‘Doublethink
and District Judges: High Court Precedent in the County Court’ (2012) 32 LS 421, 440; J Martin, English Legal System
(Routledge, Abingdon 2014) 11; M Zander, The Law-Making Process (7th edn Hart, Oxford 2015) 241; R Card and J Molloy,
Card, Cross & Jones Criminal Law (22nd edn OUP, Oxford 2016) 13; AA Gillespie and S Weare, The English Legal System
(7th edn OUP, Oxford 2019) para; D Kelly, Slapper and Kelly’s English Legal System (19th edn Routledge, Abingdon
Corresponding author:
Kwan Ho Lau, School of Law, Singapore Management University, 55 Armenian Street, Singapore 179943.

The Journal of Criminal Law 85(1)
factor negativing their binding authority.2 Since these commentaries the Court of Appeal has
seemingly confirmed that Crown Court decisions do not have authoritative value.3 It is suggested
in this article—which is solely concerned with substantive decisions made by the Crown Court in
the exercise of its criminal jurisdiction—that that conclusion should be revisited in the light of
recent developments.4
Do Crown Court Decisions Have Any Authoritative Value?
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 prece-
dential 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
2020) para 4.4.4; S Wilson and others, English Legal System (4th edn OUP, Oxford 2020) 197. See further the views of the
Office of Criminal Justice Reform in the Law Commission’s report on The High Court’s Jurisdiction in Relation to Criminal
Proceedings (Law Com No 324, 2010) para 12.2.
2. See also the passing note in P Rock, The Social World of an English Crown Court (Clarendon Press, Oxford 1993) 183 (‘After
all, one judge’s knowledge of another was necessarily imperfect and often second-hand, based perhaps on written articles (one
of the Court’s judge’s dicta were reported from time to time and he would write letters to the editors of newspapers) and
colleagues’ own reports’).
3. Technically, of course, it is the holding of law forming the ratio decidendi of the decision, and not the decision itself, which
would be binding if at all, and so long as this is borne in mind it is not harmful to write that a decision may bind a court.
4. A call for reconsideration has been sounded also in C Cox, ‘The Elephant in the Sales Room: Ivory and the British Antiques
Trade’ (2016) 23 IJCP 321, 327–28.
5. [2013] EWCA Crim 818; [2014] 1 WLR 591.
6. Ibid [24].
7. Ibid.
8. JLE v Warrington & Halton Hospitals NHS Foundation Trust [2018] EWHC B18 (Costs) [23].
9. Rogers v Essex County Council [1985] 1 WLR 700, 706; Ritz Video Film Hire Ltd v Tyneside Metropolitan Borough Council
(unreported, 26 January 1995, Divisional Court).

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 law12 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...

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