Judicial Precedent
Judicial Precedent
6 Law Making: Judicial Precedent
After reading this chapter you should be able to:
Understand what is meant by the doctrine of precedent.
Understand the hierarchy of the courts and its importance in judicial precedent.
Understand the meaning of stare decisis, ratio decidendi, and obiter dicta.
Have an outline knowledge of law reporting and understand the reasons for it.
Explain the operation of judicial precedent.
Explain and evaluate the advantages and disadvantages of the doctrine of judicial precedent.
6.1 The Doctrine of Precedent
Judicial Precedent: Refers to the source of law where past decisions of the judges create law for future judges to follow. This source of law is also known as case law, which is a major source of law historically and in modern times.
In civil legal systems, previous cases serve as guides, but they do not have to be followed.
Example: Once a legal point is decided, it becomes a precedent for later cases. For instance, in Automatic Telephone and Electric Co. Ltd v Registrar of Restrictive Trading Agreements (1965), the Court of Appeal's decision became precedent that was followed in subsequent cases.
The doctrine of precedent is based on the Latin maxim stare decisis et non quieta movere, usually shortened to stare decisis. This implies to stand by what has been decided - do not unsettle what is established.
Key Terms
Doctrine of Precedent: Following decisions of previous cases, especially those from higher courts.
Original Precedent: A decision on a point of law which has never been decided before.
6.1.1 Original Precedent
When judges face a novel issue without precedential guidance, their decision is termed an original precedent.
Judges may reference similar principles from other cases, employing reasoning by analogy.
Key Terms
Original Precedent: A decision on a point of law that has never been resolved previously.
6.1.2 Binding Precedent
A binding precedent is established by a ruling in a prior case that must be adhered to, even if the judge disagrees with the legal principle.
Key Terms
Binding Precedent: A decision from an earlier case that must be followed in subsequent cases.
6.1.3 Persuasive Precedent
A persuasive precedent is not binding but can be influential. Judges may decide to follow this guidance.
Source Examples: Lower courts, decisions by the Judicial Committee of the Privy Council, dissenting judgments, and obiter dicta.
Example: In R v R (1991) — the House of Lords followed the reasoning of the Court of Appeal.
Key Terms
Persuasive Precedent: A decision that does not have to be followed but may influence judges in their decision-making.
6.2 The Hierarchy of the Courts
In England and Wales, every court must follow decisions made by a court higher in the hierarchy.
Appellate courts are generally bound by their past decisions, with limited exceptions.
Lower courts must follow the decisions of higher courts unless:
A decision from the Court of Justice of the European Union is applicable.
Human rights cases, as outlined in the Human Rights Act 1998, where courts must consider the judgments of the European Court of Human Rights.
6.2.1 Appellate Courts
Includes:
Supreme Court: The highest national court whose decisions bind all others.
Court of Appeal: Divided into Civil and Criminal divisions, both subordinate to the Supreme Court. They usually must follow their own earlier decisions but can diverge under limited circumstances.
Divisional Courts: Also bound by the Supreme Court and the Court of Appeal and by their own past decisions.
6.2.2 Courts of First Instance
The High Court is bound by decisions of the courts above it and binds its lower courts; its judges typically follow past decisions.
Inferior Courts: Such as Crown Court, County Court, and Magistrates' Court, are bound by higher courts and generally cannot create binding precedents.
Rulings from Crown Court can establish precedents for Magistrates' Courts concerning legal principles.
6.2.3 The Court of Justice of the European Union
Until the UK's exit from the EU, this court is the highest authority affecting UK law. Its decisions bind English courts on EU law cases, but it can overrule its own decisions, displaying a flexible approach compared to domestic courts.
6.3 The Supreme Court (Formerly House of Lords)
Stipulations regarding how much precedent the Supreme Court follows have evolved.
Historically, the House of Lords viewed itself as completely bound by its past decisions until the Practice Statement of 1966 allowed for flexibility, stating that they can depart from past decisions when deemed appropriate.
Important Cases
Practice Statement (1966): Allowed the House of Lords to change law if an earlier case was found wrongly decided.
First Major Use: Herrington v British Railways Board (1972), where social and physical conditions had changed since an earlier ruling, allowing for new principles on duty of care to child trespassers.
6.3.1 The Practice Statement
Aimed to grant flexibility while maintaining the certainty of law, with an emphasis on legal consistency.
Example Cases:
Conway v Rimmer (1968): First case where it was applied, dealing with the discovery of documents.
6.4 The Court of Appeal
The rules governing precedent are slightly different across its Civil and Criminal Divisions.
6.4.1 Decisions of Higher Courts
The Court of Appeal is bound by the Supreme Court's decisions and past decisions from the House of Lords.
Past attempts by Lord Denning to challenge this have largely been dismissed, reinforcing the supremacy of past decisions.
6.4.2 The Court of Appeal and Its Own Decisions
Each division of the Court of Appeal is not bound by the decisions made by the other division. Exceptions to this include:
Conflicting past decisions.
Decisions of the Supreme Court that override Court of Appeal decisions.
Decisions made per incuriam (in error).
6.4.3 The Court of Appeal (Criminal Division)
The Criminal Division can also disregard past rulings if the law has been misunderstood or misapplied, due to the significant consequences involving personal liberties.
6.5 Judgments: Stare Decisis, Ratio Decidendi, Obiter Dicta
6.5.1 Stare Decisis
Meaning: To stand by what has been decided, ensuring precedent is upheld.
Key Terms
Stare Decisis: The foundation of judicial precedent emphasizing adherence to established decisions.
6.5.2 Ratio Decidendi
The reason for a judgment that creates binding precedent for future cases.
Definition Examples: Sir Rupert Cross states it as a necessary step in the conclusion process.
Key Terms
Ratio Decidendi: The reason for the decision that establishes a precedent.
6.5.3 Obiter Dicta
Statements made in a judgment that do not contribute to the legal decision reached and are not binding in future cases.
Key Terms
Obiter Dicta: Other comments made outside the ratio decidendi, not binding but can be influential.
6.6 The Operation of Precedent
Judges can navigate the principles of precedent through:
6.6.1 Following
Courts must apply an existing precedent unless distinguishing is possible.
6.6.2 Overruling
When a higher court states that an earlier ruling is incorrect. Occurs during cases, e.g., the Supreme Court utilizing the Practice Statement to overrule prior decisions.
6.6.3 Distinguishing
Judges identify material fact differences between cases to avoid following a binding precedent.
Key Terms
Distinguishing: Avoiding the application of a previously binding precedent based on differing facts.
6.7 Precedent and Acts of Parliament
Understanding the authority of Acts over precedent is crucial:
If a case conflicts with a new enactment, the Act prevails.
However, judicial interpretation still sets precedent for clarifying legislative terms.
6.8 Advantages and Disadvantages of Precedent
6.8.1 Advantages
Certainty: Provides predictability for judicial outcomes.
Fairness: Similar cases are treated alike.
Precision: Law is illustrated through case specifications.
Flexibility: Room for evolution within legal applications.
Time-Saving: Established principles streamline litigation.
6.8.2 Disadvantages
Rigidity: Perpetuation of outdated legal decisions.
Complexity: Vast volume of cases makes legal navigation difficult.
Illogical Distinctions: Judges may arbitrarily differentiate between cases.
Slowness of Growth: Need for cases to escalate through the courts to effect change.
Summary
The doctrine of precedent is grounded in the concept of stare decisis. Courts adhere to past decisions set by higher courts.
The Supreme Court has the authority to depart from its past rulings in certain situations based on the Practice Statement.
The significance of understanding both ratio decidendi and obiter dicta lies in establishing precedent and distinguishing between binding and non-binding components.