Judicial Precedent

Judicial Precedent

1. 1. Ratio Decidendi / Obiter Dicta / Stare Decsis

   • 1. Ratio Decidendi
     • This means reasons for the decision
       • This is the judgement at the end of the case
         • The most important part of the judgement
           • The important parts of judgement contains:
             • Summary of the case
               • Review of the arguments
                 • Legal principles of the judge's decisions
                   • R v HOWE and BANNISTER
                     • DURESS IS NOT THE DEFENCE TO MURDER
                       • HOUSE OF LORDS CASE SO ALL LOWER COURTS HAVE TO FOLLOW
                         • BINDING
   • 2. Obiter Dicta
     • This means other things said by the way
       • The non-binding part of the decision which does not have to be followed by other judges
         • May be persuasive in later cases
           • The judges in R v Gotts (1992) followed the obiter dicta of R v Howe (1987) in holding that duress is not a defence for attempted murder.
   • 3. Stare Decisis
     • This means let the decision stand
       • It provides certainty through treating like cases in the same manner.

2. 2.Law Reporting

   • 1. What is a law report?
     • Record of judgement in a case
       • Contains the legal arguments and facts of a case
         • ICLR - The Incorporated Council of Law Reporting
           • 4. Other types of law reports?
             • Other Private Reports - All England Law Reports
               • Specialist Reports = Family Law Reports and Criminal Appeal Reports
                 • Online Database of Law Reports = LexisNexis
                   • All cases which introduce a new law
                     • All cases which modify an existing rule
                       • All cases which settle a question where the law is doubtful
                         • All cases which are practically useful
                           • Report cases from:
                             • House of Lords, Court of Appeal and Divisional courts of the High Court
                               • Reports take months too publish
                     • Nathaniel Lindley said the following cases should include:
             • 5. Which cases are reported?
               • 6. Information about Law Reports
                 • 7. Problems?
           • Checked by Judges for an accurate record oft he reasons for the decision
     • 2. What does it contain?
       • 3. Who publishes law reports?

3. 3. Binding and Persuasive Precedent

   • 1. Binding Precedent
     • Precedent in an earlier case must be followed in a later case
       • E.G - R v Emmett, where the rule of R v Brown was confirmed
       • Precedent is not binding in court so lower courts do not have to follow a decision made by a higher court
         • FOR EXAMPLE:
           • 1. Courts lower in the heirachy
             • RvR which established a man can be guilty of raping his wife
               • House of Lords agreed with and followed the reasoning of the CA
           • 2. Statements by Obita Dicta
             • R v Gotts followed the statement in R v Howe
           • 3. Decisions of courts in other countries
             • Where other countries use the same idea of common law - Australia and New Zealand
               • Caparo v Dickman - HoL approved a statement made in an Australian case
     • 2. Persuasive Precedent

4. 4. Methods of avoiding Judicial Precedent

   • 1. Distinguising
     • When a judge finds facts of the face different from him/her to draw a distinction between the previous case and present case
     • Balfour v Balfour
       • Merrit v Merrit
         • Courts distinguished the case because:
           • Agreement was made after they had separated and was made in writing.
       • Similar because both cases involved a woman making a claim against her husband for breach of contract.
       • There was No legal binding contract for it to succeed.
       • Ratio Decidendi = No intention to create legal relations when an agreement is made within marriage.
         • WHY IT DIDNT SUCCEED
   • 2. Overuling
     • When a higher court overules an earlier decision made by a lower court
       • OR, does not follow a precedent set in a previous case either by itself or a lower court
         • E.G - Supreme court can overrule a decision made by CA
         • CANDLER V CRANE CHRISTMAS
           • V Sued D for giving a negligence misstatement of the companies accounts.
             • CA said he could not sue D for negligence misstatement
               • However, Lord Denning disagreed with the judges and made a dissenting judgement
           • HEDLEY BYRNE V HELLER
             • HoL decided to follow Lord Dennings dissenting judgement
               • Holding the D's could be liable for negligence in pure economic loss.
   • 3. Disapproving
     • Have or express an unfavorauble opinion about something
       • When a judge expresses he/she believes the precedent is wrong.
         • Disapproving can be done in two ways:
           • 1) Judges may disapprove of a precedent which they are never the less bound to apply, in the hope that it will be reconsidered.
             • E.G - Lord Justice Goff disapproved of the House of Lords decision in R v Caldwell which established objective recklessness.
             • 2. A Superior Court may disapprove of a precedent created by a lower court without actually overruling it.
               • Disapproval is a useful tool for judges to use as a criticism of a case.

5. Advantages of Judicial Precedent

   • 1. Certainty in the Law
     • Lawyers must be able to advise their clients of the likelihood of success in a case.
       • Saves time - people do not go unecessarily
         • Promotes justice as cases with similar facts are decided in a similar way
           • In the case of R v Emmett, the Judge was able to refer the precedent of 'brown' to make a decision.
             • Ratio in Brown - consent is not a defence to murder
     • 2. Law made by experts
       • Argued that judges are in a better position to make laws than MP's
         • Due to their expertise in the law
           • Years of legal experience
             • MP's make laws through Acts of Parliament
         • LADY HALE
           • First from Cambridge Uni and graduated top of her class
             • Now sits in the Supreme Court
   • 3. Development of the Law - Original Precedent
     • Lord Denning said that law cannot cover every situation that may arise
       • GILLICK v WISBECH
         • HOL had to decide whether girls under 16 could be prescribed contraceptives without parental consent as its never been a case in court like this.
           • HOL said they could be prescribed contraceptives as long as they understood the issues involved
             • Opened a new era to law
     • 4. Development of the Law - Correcting Mistakes
       • Practice Statement 1966 - SC can depart from its own decisions when it considers it is right to do so.
         • R V SHIVPURI
           • Lord Bridge used the PS as an admission that the HOL do make mistakes
             • They used the PS to overrule Anderton v Ryan

6. Disadvantages of Judicial Precendent

   • 1. Rigidity
     • Lord Denning believed that Court of Appeal do not have enough flexibility to change its own previous decisions when they were wrong
       • AND CA did not have the power to change a decision of HOL even if they disagreed with it
         • HOL confirmed CA are bound by the HOL decisions and are bound by its own decisions.
   • 2. Undemocratic
     • As judges’ role can be said to be applying law passed by Parliament rather than making law
       • Judges are un- ellected
         • DONOGHUE V STEVENSON AND GILLICK
   • 3. Retrospective Effect
     • Judges make changes to the law so they are often changing the law related to events that occurred before the case came to court
       • Unfair = D may have been acting legally at the time of the relevant act.
         • Before the Law was changed
     • R v R
       • Husband was not acting ILLEGALLY when he 'raped' his wife