JUDICIAL PRECEDENT

REVISION AID

PRECEDENT

‘an earlier event or action that is regarded as an example or guide to be considered in subsequent similar circumstances.’

PRECEDENT IN LAW TERMS

Precedent in law means following previous decisions that have been made in courts.Judicial precedent is based on the Latin maxim: stare decisis.This means ‘stand by what has been decided and do not unsettle the established’.

The Doctrine of Precedent

JUDGEMENTJudicial precedents can only be formed if the legal reasons for previous decisions are stated. These are stated in a JUDGEMENT.

A judgement is a speech made by the judge or judges that have heard the case which includes:

. Summary of the case facts

. Review of arguments put forward

. Principles of law used to form a decision

. The decision made

. Reasons for this decision

RATIO DECIDENDI Another name for: the reasons for the decision made.

It can be hard to identify the ratio decidendi from the obiter dicta in the judgement because they are never specific to each part it is just a general speech.

IMPORTANT TO REMEMBER:

.Sir Rupert Cross defined the ratio decidendi as ‘Any rule expressly or impliedly treated by the judge as a necessary step in reaching his conclusion’.

.Michael Zander defined the ratio decidendi as ‘a proposition of law which decides the case, in the light or in the context of the material facts’.

HOW IS THE RATIO DECIDENDI IMPORTANT IN JUDICIAL PRECEDENT?

.This is what forms the precedent..This is the part that judges have to follow.

OBITER DICTA

Everything else said in the judgment that isn’t the reason for the decision is classed as the obiter dicta so this includes: summary of the case, principles of laws used to form a decision, review of arguments put forward and the final decision made.

The obiter dicta does not have to be followed in a precedent, however sometimes a judge will look at it to help them form their decision.

TYPES OF PRECEDENT

. ORIGINAL PRECEDENT

. BINDING PRECEDENT

. PERSUASIVE PRECEDENT

ORIGINAL PRECEDENT

An original precedent means that there has been no previous cases using similar points of law. Therefore, whatever the judge decides will form a new precedent for the future. This is essentially where all precedents are made. Because this judge will have no past cases to base his decision on, judges often look at cases which are closest in principles and may decide to use similar rules. This is called reasoning by analogy.

BINDING PRECEDENT

Binding precedent is a precedent or an existing law that courts have to follow. Lower courts have to follow precedents from all courts higher than it. Even if the judge does not agree with the precedent they have to follow it. They are only created if the facts of the second case are sufficiently similar to the original case. They also are only binding from courts the same level or higher in the hierarchy.

PERSUASIVE PRECEDENT

This type of precedent does NOT have to be followed but it is there for the judge to CONSIDER. There are 5 different sources that judges can be persuaded on their decision by:

. Courts lower in the hierarchy

. Decisions of the judicial committee of the privy council

. Statements that are OBITER DICTA

. A dissenting judgement

. Decisions of courts in other countries

-courts lower in the hierarchy

Usually precedents come from courts higher up in the hierarchy however, if extra help is needed to come to a decision the judge can look to what previous cases have been made in the lower courts.

An example (IMPORTANT)-

R v R (1991)

The House of Lords (supreme court) agreed with and followed the same reasoning as the Court of Appeal which is lower down than it, in deciding that a man cannot rape his wife.

-decisions of the judicial committee of the privy councilThis court is NOT part of the hierarchy, so it doesn’t have to be followed. However, their judgements are often respected and looked at because most members of the privy council are also members of the supreme court.

- statements made obiter dictaThis means using other parts, other than just the ratio decidendi, of the judgement to see how they got to there decision to help make their judgement.It is seen in this case (IMPORTANT)-In the case of R v Howe (1987) where the house of lords said that duress could not be a defence to the charge of murder. In the judgement to this case, they stated that duress would not be available to defend somebody charged with attempted murder.Then, later on in the case of R v Gotts (1992) the defendant was charged of murder and they tried to argue that it was a result of duress. The Court of Appeal then used the obiter statement from the case of R v Howe as a guide to not let the defendant use this in his defence.(Duress- threatening or forcing a person to commit an unlawful act)

- a dissenting judgement

In certain cases, there is more than one judge. Therefore, there is more than one judgement at the end of the case if all judges do not agree. The decision is always chosen on the majority of the judges. However, if there is 3 judges and the decision was 2 judges to 1, the judge that has the different opinion would have to explain his reasons in a DISSENTING JUDGEMENT.

If the same case or a later case that is similar is appealed to the supreme court, they can often look at the dissenting judgement to see if this decision could have been the correct decision.

-decisions of courts in other countriesThis is used where other countries have similar common law as the UK system. This is mostly commonwealth countries such as:

.Canada

.Australia

.New Zealand

They often look at similar cases gone through in different countries to persuade them to follow what has been decided in these cases.

1.What is the definition of a precedent in terms of law?

2.What is a judgement?

3.What is the ratio decidendi and obiter dicta?

4.What are the three type of precedent?

5.What is an original precedent?

6.What is a binding precedent?

7.What five sources are used in persuasive precedent?

8.Why is the case of R v R important in terms of courts lower in the hierarchy on persuasive precedent?

9.What is an important case to remember about in using statements made obiter dicta as a persuasive precedent?

The Hierarchy of The Courts

COURTS IN THE HIERARCHY (important)

CRIMINAL

European Court of Justice

Supreme Court

Court of Appeal

Queens Bench Divisional Court

Crown Court

Magistrates Court

CIVILEuropean Court of Justice

Supreme Court

Court of Appeal

Divisional Courts

High Court

County Court

Magistrates Court

.Every court is bound to follow any decision made by a court above it in the hierarchy.

For example, a precedent from a high court will be binding on county and magistrates courts.

.Appellate courts (courts that hear appeals) are bound by their own past decisions.

THE EUROPEAN COURT OF JUSTICE

This is the highest court that affects our legal system. Points of EU laws can be referred to by courts in England and Wales. They are only responsible for deciding the point of law, the case is always decided back in the court in this country. All of their decisions are binding on all of our courts in England and Wales. The European Court of Justice will overrule its own past decisions if it feels necessary. Therefore, they have a lot more flexible approach to their past precedents whereas in the UK our precedents are taken within a rigid approach.

SUPREME COURT

The eldest court in our system is the Supreme Court which was previously known as the House of Lords. Its decisions bind all other courts in the English legal system. It is NOT bound by its own previous decisions however, they generally still follow them.

COURT OF APPEAL

There are 2 divisions: Civil and Criminal. Both divisions are bound by the European Court of Justice and the Supreme Court. They usually follow their own past decisions, the only exceptions are usually to the criminal division where peoples liberty are involved.

DIVISIONAL COURTS

There are 3 divisional courts: Queens Bench, Chancery and Family. They are all bound by decisions of the European Court of Justice, the Supreme Court and the Court of Appeal. They are also all bound by their own past decisions. Similarly to in the Court of Appeal, there are similar exceptions when a persons liberty is on line in the case. An example of this is R v Greater Manchester Coroner, ex parte Tal (19984).

-HIGH COURT

The high court is bound by decisions of all the courts above it in the hierarchy. It binds all courts lower than it. The judges within the High Court do not have to follow each others decisions but generally do.

APPELLATE COURTS

These are courts that hear appeals. It includes: .The European Court of Justice.Supreme Courts.Court of Appeal .Divisional Courts.

INFERIOR COURTS

These courts are quite low down in the hierarchy. It is unlikely that a decision made in these courts will create a precedent. However, rulings in the crown court on a point of law are precedent to magistrates courts but rarely recorded. Inferior courts include:

. Magistrates Courts

. Crown Courts

. County Courts

COURTS OF FIRST INSTANCEThis refers to any court that the original trial was held at. Appellate courts do not hear original trails so it includes inferior courts and the high court.

Appellant courts only deal with cases from the courts of first instance.

An appeal is usually about a point of law, this allows the appellant court to decide the point of law, which would be decided by the judge which could create a new precedent. Therefore, appellant courts are seen to be much more important than the courts of first instance when creating precedent.

1. State the hierarchy from lowest to highest of the civil courts.

2. State the hierarchy from lowest to highest of the criminal courts.

3. Who is bound to who in the hierarchy?

4. What are the European Court of Justice responsible for?

5. Do the European Court of Justice overrule their own decisions?

6. What was the Supreme Court previously known as?

7. Is it bound by its own decisions?

8. What two divisions are there within the Court of Appeal?

9. Do they follow their own past decisions? What are the exceptions?

10.What are courts called that hear appeals? Which courts are they?

11.What are inferior courts? List the three.

12.Can precedents be created in an inferior court?

13.What is a court of first instance?

14.What are the three divisional courts?

15.Who are they bound by? Are they bound by themselves? Exceptions?

16.What court does the high court bind?

17.State a fact about High Courts decisions.

THE OPERATION

OF DOCTRINE

THE SUPREME COURTThe main argument about the supreme court and judicial precedent is to which extent the court should follow its own past decisions. Originally, years ago the house of lords had the right to overrule its previous decisions. However, in the case of London Street Tramways v London County Council in 1898 the House of Lords decided that certainty in the law is the most important. Therefore, from 1898 to 1966 the House of Lords was bound by its own decisions unless the decision had been made PER INCURIAM which translates to IN ERROR. This only refers to where the decision has been made without considering the effect of a relevant law. However this was felt to be wrong because the law could not change to meet social conditions.

THE PRACTICE STATEMENT

In 1966 the lord chancellor issued a practice statement because it was realised that the house of lords needed more flexibility. The practice statement announced a change to the rule in London Street Tramways v London County Council. This allowed the house of lords to change the law if they believed that it was previously decided wrongly. They now had the right to only follow an earlier case when it ‘appears right to do so’.

Example of them using it (important):

Miliangos V George Frank (textiles) Ltd the house of lords used the practice statement to overrule the previous judgement that damages could only be awarded in sterling.

THE PRACTICE STATEMENT IN CRIMINAL LAW

Criminal law needs to be certain because it is usually about a persons liberty. Therefore, the House of Lords did not use it at first freely on judgements involving criminal cases. The first case it was used in was R v Shivpuri which overruled the decision in Anderton v Ryan. The interesting point about this case was that it was overruled in less than a year of it being made. A statement was made by Lord Bridge to say that whether a law has only been created 3 months ago or 5 years ago, if it is found wrong it may aswell be corrected immediately so that no more cases are held wrong rather than keeping them the same to make the judges look better.

THE HOUSE OF LORDS CHANGING TO THE SUPREME COURT

The supreme court replaced the house of lords in 2009 and the constitutional reform act 2005 transferred the house of lords powers to the supreme court. At first they queried whether it included transferring the practice statement also. In a case of Austin v London Borough of Southwark 2010 the supreme court confirmed that the power of the practice statement was included when the powers were transferred.

DECISIONS MADE ABOVE THE COURT OF APPEAL

Decisions made in The Court of Appeal are bound by decisions of The Supreme Court and European Court of Justice. Lord Denning argued that the Court of Appeal should not be bound by the House of Lords because barely any cases get up to the Supreme Court, there is probably only about 50 a year therefore the cases that the Court of Appeal will have to use as a binding precedent are very likely to be 100’s of years old which may mean they don’t fit in with the current social attitudes. An example of this is in the case of Miliangos v George Frank Textiles Ltd the Court of Appeal under Lord Dennings leadership refused to follow a decision made in the House of Lords that said that compensation could only be paid in sterling. Lord Denning realised that the economic state of the world had changed and sterling isnt a stable currency to always be considered the right way.

THE COURT OF APPEALS OWN DECISIONS

The 2 divisions criminal and civil in the Court of Appeal do not bind each other because they generally do not overlap. However, within the 2 divisions the decisions are usually binding, ESPECIALLY CIVIL LAW. This was confirmed in the case of Young V Bristol Aeroplane Co. Ltd (1994) the only exceptions are:. Where there are conflicting decisions in the past Court of Appeal cases so the court can choose which one it will choose to follow and which it will reject.. Where there is a decision of the supreme court which effectively overrules a Court of Appeal decision the Court of Appeal must follow the decision of the Supreme Court.. Where the decision made was PER INCURIAM, that is carelessly or by mistake if they didn’t consider a relevant law.

These rules from the case of Young were also confirmed in the case of Davis V Johnson (1979). The case of Davis V Johnson included the Court of Appeal refusing to follow a decision that had been made only days before this one. The case was appealed to the supreme court where the law lords ruled that the Court of Appeal had to follow its previous decision, which confirmed the ruling that was set in the case of Young.

The criminal division is very similar and still use the exceptions of following its own past decisions that were stated in Young’s case however they can also refuse to follow a past decision if the law has been ‘misapplied or misunderstood’. There is an extra exception because in criminal cases it is the involvement of a persons liberty.

LAW REPORTING

In order for past decisions to be followed there needs to be a record of all past cases. A law report is a written account of everything that happens in the court, the judgement. At one point they were called yearbooks and written in French then they were developed further to be only written by individuals to make a business out of selling them to lawyers. After that, the Incorporated Council of Law Reporting was established which is now controlled by the courts. Reports are also now available online.

1. Do the Supreme Court feel they should follow its own past decisions?2. What case made the House of Lords decide that certainty of the law is the most important

so made the House of Lords bound by its own decisions?3. What was the exception? what does it mean? (latin)4. Were people happy with this? Why? 5. What was issued as a result of noticing more flexibility was needed? By who? What year?6. What did the Practice Statement allow?7. Example of the use of the Practice Statement?8. In terms of criminal cases was the Practice Statement commonly used?9. What was the first criminal case that used the Practice Statement? What is interesting about

it? Who made a statement after this and what was it saying? 10. When did the Supreme Court replace the House of Lords?11. What act transferred its powers? Did it include Practice Statement in powers?12.What was the Court of Appeals argument about being bound by the House of Lords/Supreme

Court?13.What case did Lord Denning refuse to follow a precedent on?14.What two divisions are there within the Court of Appeal? Do they bind each other? Why?15.Within the divisions are the decisions binding? Which division especially?16.What case ruled out about the past decisions being binding and what exceptions there

were?17.What are the exceptions that were created in the case of Young V Bristol Aeroplane Co. Ltd

(1994)?18.Do the criminal division of the Court of Appeal use the same exceptions? Why different?

AVOIDING PRECEDENT

-DISTINGUISHINGThis method can be used by a judge to avoid following a past decision. If a judge finds that the material facts of their present case are sufficiently different to the previous precedent, then he is not bound by that previous case.

An example of this (important)-

Balfour v Balfour (1919)- wife made a claim for her husband to pay her money to live however in this case the arrangement here was only a domestic one when they were together with no contract made about it.

However in the case of

Merrit v Merrit (1971)- this too was about a wife making a claim from her husband however the case facts were different because in this case the two made the agreement after they had split and it was made in writing.

-OVERRULING

This involves a court in a later case deciding that the legal rule used to decide a judgement in a previous case was wrong. Overruling can occur when a higher court overrules a decision made in an earlier case at a lower court.

A prime example of overruling is the law about DOUBLE JEOPARDY.

-DISSAPROVINGThis is where the judge does not agree with the previous decision and states so in their judgement. This occurs when the present case is related on a point of law however the point of law is not sufficiently similar for it to be overruled. It can also occur when the judge is from a court lower down in the hierarchy than the court that made the original decision because they wouldn’t be able to overrule a higher courts decision. An example of this is the case of R v Hudson and Taylor (1971) where a defence of duress was used in case of perjury which was disapproved in the case of R v Hasan (2005) where the point of law was about whether the defendant could still use this defence if he realised that he was putting himself in a situation where he could have been pressured into committing a crime, for example joining a gang.

-REVERSING

This is where a higher court reverses the decision of the lower court on appeal. (makes the law void). For example the Court of Appeal may disagree with a decision made in the High Court and have a different view on that law so they will reverse the decision from the High Court.

PRECEDENT AND ACTS OF PARLIAMENT

Judicial precedent isn’t seen as the most important law making. It is subordinate to statue law, delegated legislation and European legislation. This means that if an Act of Parliament is passed that goes against a law made from a precedent in a past case, the Act of Parliament is what will then be followed and that decision from the precedent will no longer exist. An example of this is that a precedent previously stated up until 1996 that a person could not be charged with murder if the person died a year and day after being attacked. However in 1996 Parliament passed the Law Reform (year and a day rule) Act which stated there was no time limit in which a person could be found guilty of murder even if the victim died several years later.

1. How do judges avoid following precedent by distinguishing?

2. What example of this is there? What was the difference between the two cases?

3. What is the term called when a court in a later case decides that the legal ruled from a judgement in a previous case is wrong?

4. What is an example of this?

5. What is disapproving as a form of avoiding precedent? Why is this used and not overruling? Why else is this used?

6. What case was disapproved? Why?

7. What is reversing? Why is it used?

8. Is Judicial Precedent seen as the most important law making?

9. What effect do Acts of Parliament have on Law made by Judicial Precedent if they are contradictory?

10.How does the Year And A Day Rule come into this?

ADVANTAGES OF JUDICIAL PRECEDENT

- CERTAINTY

Courts follow previous decisions that are commonly followed. Therefore, people know what to expect from the law if it is constantly used. Also, because it is case law they can also apply it to their case better. This certainty is also useful for lawyers to advise their clients on how likely their outcome of their case is based on previous case facts. The importance of certainty is pointed out in the Practice Statement.

-CONSISTENCY AND FAIRNESS IN THE LAWIt is seen as fair and morally right that similar cases are decided in a similar way, this makes every case equal. Just like in sport, both teams are treated equally, so both cases using similar facts should be treated equally. Therefore, the law must also be consistently used for it to be credible to apply to all cases.

-TIME SAVING

Precedent is considered as a useful time- saving device. When a principle of law has been created through a precedent it is immediately active law. Whereas, if through every case we found a new principle of law and went through parliament in the process of primary legislation it would be a very lengthy process. Therefore, using precedents as a form of law making is probably the quickest out of any form of law making. In this sense it also saves the actual court time as they can make their decision much quicker by looking at any past cases that have similar facts to use as a precedent.

-FLEXIBILITY

There is always room for the law to change here, so if it is wrong it is easy enough to be corrected. The Practice Statement allows this to happen because the House of Lords/Supreme Court have the right to overrule any past cases if they believe it is right to do so. Also, the process of distinguishing can be used if a judge does not feel the case facts are similar enough so it is not completely certain that every past case has to be followed in the future.

DISADVANTAGES OF JUDICIAL PRECEDENT

-RIGIDITY

In some cases it could be seen as too rigid meaning not as flexible as it would like to be. This is in the case of lower courts in the hierarchy having to follow every decision of courts higher than it. Therefore, bad decisions in the past could be carried on if they are not brought to light that they are incorrect. There is the added problem also that not many cases at all ever really reach the supreme court meaning there is not much precedent to follow here. Therefore, when there is a case that matches with a present case it is likely to not be correct decisions because the chance is it will be hundreds of years old.

-COMPLEXITY

There are nearly half a million reported cases therefore it is not easy to find a relevant one quickly. Once they have found a case anyway, the judgements are very complex and long, it never makes it clear which part is the ratio decidendi and which is the obiter dicta. This is seen in the case of Dodd’s (1973) where the judge in the Court of Appeal said they were unable to find the ratio decidendi at all in the decision to use it.

-ILLOGICAL DISTINCTIONS

The use of distinguishing as a way of avoiding precedent sometimes uses very illogical reasoning for example they are deciding not to follow a case simply because in one case it could be a matter of a left arm and in another it was a left leg. This is commonly seen when the differences are very small.

-SLOWNESS OF GROWTH

Judges can be aware now that certain parts of the law need slight changes made or need things added in however, if there are no cases that reach a high enough court they have nothing to make their precedent from. Therefore, they are relying on a crime or civil case to happen. This links in with the idea of the Court of Appeals argument not to follow the Supreme Courts decisions as there are barely any precedents made in the Supreme Court so they can be waiting a long time before they can find a suitable case to follow.