Judicial Precedent

We will consider the following questions…

• What is the system of hierarchy in the Courts?

• What is meant by Judicial Precedent?

• What is a ratio?

• What does obiter dictum mean?

• What are the material facts of a case?

The case of R v R (1991)

The defendant married his wife in 1984. As a result of matrimonial difficulties the wife left the matrimonial home in 1989 and returned to live with her parents, informing the defendant of her intention to petition for divorce. The defendant also communicated to the wife his intention to "see about a divorce."

While the wife was staying at her parents' house, the defendant forced his way in and attempted to have sexual intercourse with her, in the course of which attempt he assaulted her. He was charged on indictment with rape and assault occasioning actual bodily harm.

Under the Sexual Offences (Amendment) Act 1976 the offence of rape was one which was not known to the law where the defendant was the husband of the alleged victim.

The Problem….

The law states that there is no criminal offence of rape within marriage.

Introducing an Act of Parliament would take too long to pass.

Acquitting the defendant would clearly be morally “wrong”, although not wrong in legal terms.

The Solution…..

The judge makes a decision.

In the case of R v R, that rape within marriage is still rape, and should therefore be treated as a criminal offence.

The decision then influences future similar cases by creating a ‘precedent’ for other courts to follow.

This method of making law is known as ‘judicial precedent’, or ‘case-law’, or ‘common law’.

Judicial Precedent

Definition:

The source of law where past decisions of the judges create law for future judges to follow.

Judicial Precedent

Judges create law for future judges.

It is also known as stare decisis – stand

by what has been decided (and do not

unsettle the established)

A judge must follow any

decision made by a higher court in a case with similar

facts.

Some courts must also follow their own

previous decisions – they are said to bind

themselves.

Rationale is to create

fairness and certainty in

the law

Ratio Decidendi

Precedent can only operate if the legal reasons for past decisions are known.

At the end of a case there will be a ‘judgement’ – a speech made by the judge(s) hearing the case, which includes an explanation of the reasons, or principles of law he is using to come to the decision.

These principles are known as ‘ratio decidendi’ – the reason for deciding. This is what creates a precedent for judges to follow in future cases.

The rest of the judgement is known as ‘obiter dictum’ – other things said.

Ratio Decidendi

When a Judge makes a decision, they will give a statement of the

facts, a verdict and their ratio decidendi.

Ratio Decidendi

means reason for deciding.

It is the ratio that creates new law and

this must be followed by judges

in lower courts.

It is not always easy to find the ratio in a

case.

Obiter Dictum

• The judgement in a case may be several pages long.

• Not all of this information relates to the material facts.

• This is known as ‘Obiter Dictum’ or “ a thing said by the way.”

Obiter dicta statements are not binding on a later judge.

Obiter Dictum

• Obiter comments can arise in many ways:• The judge may say

“If the facts had been different then my decision would have been …”

• The judge may make a number of general comments on the topic of law under discussion

• The judge may say what he would have decided if he/she had not been bound by stare decisis.

The Problem…

• We now know that the ratio of the case has to be followed and things said by the way do not.

• The doctrine of stare decisis tells us that one court must follow the ratio of a superior court when dealing with similar cases.

• It cannot tell us, however, when two cases are sufficiently similar.

• If the facts were identical, then there would be no problem – BUT the facts change from case to case.

The Problem…

• As no two cases are identical, what needs to be decided is whether two cases are sufficiently similar that they should be treated the same.

• A quick comparison of the facts can help but it is limited:

The Problem…• Consider this example: Case 1

A man driving a Ford Escort runs over an old lady who was using a zebra crossing. He is found guiltyof reckless driving.

Case 2A woman driving a BMW runs over an old man who was crossing the road.

Is she guilty too?

The Solution?

• It is impossible to determine if the woman is guilty or not without first understanding WHY the man was guilty in Case 1.

• Was it important that the old lady was on a zebra crossing?

• Was it important that she was an old lady?• Does it matter that the woman was driving

a different car?

The Key Question

• The question as to WHY guilt was found is all

important.

Material FactsTo determine why a decision was made, it is necessary to

determine the material facts of the case.

Back to our earlier example:

• Case 1

Alfred was found guilty of reckless driving – the facts of the case were:

a) The old lady was lawfully and carefully crossing by a pedestrian crossing.

b) Alfred was speeding.

c) Alfred was not looking where he was going.

d) The weather conditions were excellent.

Material Facts

• The reason why he was guilty or the ratio of this case might be:

“When a person is speeding in good weather conditions and not looking where they are going, they will be guilty of reckless driving if they injure a pedestrian who is crossing the road.”

The fact that Alfred was male, the victim was female and that the car was a Ford Escort are not relevant so are not material facts.

Material Facts

• If we apply the facts of Case 2 to this decision:

• The old man was not using a pedestrian crossing but was carefully crossing the road.

• The woman was speeding.• She was not looking where she was going.• The weather conditions were excellent.

What’s The Difference?

• The only difference was that the old man was not using a pedestrian crossing. The question to ask is whether these two cases are sufficiently similar.

• Do you think it should make a difference that the man was not using a pedestrian crossing?

• If the case is sufficiently similar then the judge will have to follow the decision in Case 1.

• If the fact that the man was not on a pedestrian crossing makes a difference then the judge is free to make a new decision and does not have to follow case 1.

What Are The Material Facts?

• Material facts are ones which will affect the decision or outcome of a case.

Binding Precedent

Whether or not a precedent is binding determines whether a court at a later date has to follow the ratio, or whether it merely has to be considered.

Therefore, knowledge of the hierarchy of the courts is crucial to understanding precedent

TASK: Using memory alone, you are to illustrate the hierarchy of the courts (criminal and civil)

Hierarchy of the courts

In order for the system of judicial precedent to work, there

must be rules for judges to follow to make sure that there

is consistency in the law.

One way of doing this is to have a system on hierarchy,

where decisions in the superior courts bind those of the

inferior court. Some courts are bound by their own

previous decisions.

The European Court of Justice

The House of Lords

The Court of Appeal

Civil

The High Court The Crown Court

Magistrate’s CourtCounty Court

Family

Division

Chancery

Division

Queen’s Bench

Division

Criminal

The Hierarchy

of the Courts

House of Lords

The House of Lords is the most senior court in England and

Wales. Decisions made here bind all the courts below.

The House of Lords is also bound by its own previous

decisions. However, it may depart from its previous

decisions when it appears ‘right to do so’ (Practice

Statement 1966).

Court of Appeal

The Court of Appeal is bound by the decisions of the House

of Lords. It is also bound by its own previous decisions.

However, the case of Young v Bristol Aeroplane (1944) set

out three exceptions when the Court can depart from its

own previous decisions.

High Court

The High Court is bound by the courts above and binds the

courts below it.

Crown Court, County Court and Magistrates’ Court

The inferior courts are not bound by their own decisions,

nor do they bind other courts. This is because they do not

make precedents; they just apply the precedents set by

the higher courts.

Types of precedent

There are two types of precedent:

• binding

• persuasive

Binding precedent

A binding precedent is the part of a judgement that other

judges have to follow.

The ratio decidendi (reason for deciding) made by a

judge high enough in the hierarchy will bind future

decisions of other judges.

Persuasive precedent

A persuasive precedent need not be followed, but it may be

helpful to a judge making a decision. If a judge decides to

follow a past decision that was not binding, the decision is

said to be persuaded.Persuasive precedents include:

• a decision of a lower court (R v R, 1991)

• a decision of a court outside the English hierarchy (Re S, 1992)

• an obita dicta (R v Howe, 1987)

• a statement of law made by a dissenting judge

How precedent works

1. Follow

2. Overrule

3. Reverse

4. Distinguish

5. House of Lords Practice Statement 1966

6. Court of Appeal – Young v Bristol Aeroplane (1944)

Follow

If the material facts of a case are significantly similar to an

existing precedent, the judge should always follow the

previous decision.

Overrule

A superior court may overrule the decision of a court below

it and therefore change the law.

Reverse

A superior court may change the outcome of a case from a

lower court based on the same law, e.g. the Crown Court

applies the existing law and finds the defendant guilty,

whereas the Court of Appeal finds the person not guilty

when applying the same law.

Distinguish

If the facts of a case are significantly different from the

facts of an earlier case, the judge does not have to follow

the precedent that is already established.

House of Lords Practice Statement 1966

Before 1966, the House of Lords was bound by its own

decisions. This meant that the law was certain but it could not

change.

In 1966, the House of Lords passed the Practice Statement,

which allows it to change one of its previous decisions when it

appears ‘right to do so’, e.g. R v Howe (1987) overruled DPP

v Lynch (1973), and R v Shivpuri overruled Anderton v Ryan

(1985).

Court of Appeal: Young v Bristol Aeroplane

The Court of Appeal should follow its own previous decisions.

However, the case of Young v Bristol Aeroplane (1944) set out

three exceptions when it can depart from its own previous

decisions:

• If two previous Court of Appeal decisions conflict, it may decide which to reject and which to follow.

• Where there is a conflicting House of Lords decision, the Court

of Appeal must follow this and reject its own past decision.

• The previous decision was made per incuriam.

Evaluation

Parliament is democratically elected, so it would seem that

its members are the best people to make laws for the

country.

Due to lack of parliamentary time, it may be important for

some laws to be made by judges.