Judicial Precedent The Doctrine of Precedent: the hierarchy of the courts; stare decisis, ratio decidendi and obiter dicta; law reporting. The operation of the doctrine: following, overruling, distinguishing and disapproving. Advantages and disadvantages of the doctrine and operation of precedent. Precedent: the concept that judges should follow previous cases.

Heirarchy of the courts The Supreme Court The Court of Appeal (Criminal and Civil divisions) The Court of Appeal

High Court

Criminal courts

ratio Binding precedent – because of legal principle and similar facts Ratio decidendi - the binding part Obiter dicta – the persuasive part Distinguishing Another persuasive precedent: following the decision of a lower court.

How persuasive are obiter dicta? How senior is the court? How senior is the judge? Was there dissenting opinion? A very persuasive obiter dictum, from Donoghue v Stephenson: "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be—persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."

An example of ratio and obiter DPP v Smith [2006] QBD – defendant cut off his ex-partner’s ponytail - not guilty of ABH at magistrates, DPP appealed... Ratio: cutting off hair amounts to ABH, not relevant that hair is «dead tissue». Obiter: Putting paint on someone’s hair could amount to ABH.

Stare decisis “to stand by decided matters”

Privy Council Commonwealth cases

European Court of Justice Is it bound by any other court? No Is it bound by its own previous decisions? No sir. Non merci. No Senor. Nein danke etc. etc.

The Supreme Court : key points Used to be The House of Lords Separation of powers Highest court in the UK – but has to follow decisions of the ECJ Up till 1966 it was bound by its own decisions (Cf. parliamentary sovereignty) London Tramways Co v London County Council [1898] HL “a decision of this House once given upon a point of law is conclusive upon this House afterwards” certainty over justice

The Practice Statement 1966 Lord Gardiner: “…too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.”

Example of use of Practice Decision R v Howe [1987] HL overruled Lynch v DPP for NI [1975]. Lord Hailsham: “”…the overriding objects of the criminal law must be to protect innocent lives and to set a standard of conduct which ordinary men and women are expected to observe if they are to avoid criminal responsibility…” Also R v R [1991]

The Court of Appeal: Generally bound by its own previous decisions (except for specific exceptions…) Appellate divisions of High Court (QBD, Chancery, Family): see above High Court: Binding on County Court but persuasive on High Court Crown Court – persuasive, only binding if a High Court judge is sitting. County and Magistrates’s Courts – not binding, not persuasive, not even recorded.

Young v Bristol Aeroplane Co. (1944) The Court of Appeal is bound to follow its own decisions…The only exceptions to this rule are: - (1.) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow (2.) the court is bound to refuse to follow a decision of its own which conflicts with a decision of the House of Lords (3.) the court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam, e.g. where a statute or a rule having statutory effect which would have affected the decision was not brought to the attention of the earlier court.

Also… European law Human rights

reversing …where a higher court reverses a decision when considering the same case. For example, Re Pinochet [1999]Re Pinochet [1999]

overruling …when a court overrules a decision made in a different case. For example in Pepper v Hart (1993) the House of Lords overruled its own ruling in Davis v Johnson (1978) on the use of Hansard.

distinguishing A device used by a judge to avoid following precedent where the material facts are sufficiently different: e.g. Merritt v Merritt (1971) and Balfour v Balfour (1919)

disapproving In R v Hasan (2005) HL, a case involving duress, the court disapproved, obiter, an earlier decision in R v Hudson & Taylor (1971) CA on immediacy of threat. Both judgments stand.R v Hasan (2005) HL

reversing, overruling, distinguishing, disapproving 4U0 4U0

Advantages/disadvantages Certainty – good for business, reduces litigation, saves time and money Consistency/rigidity – and, therefore, fairness/justice – and therefore unfairness and injustice (very few cases are appealed; it costs money).

Advantages/disadvantages Precision/complexity: As judges add to areas of law it becomes very precise (e.g. when they distinguish) but… 100s of 1000s of cases, case reports very long – see Dodd’s Case (1973)

Advantages/disadvantages Flexibility/Illogical, subjective: The Practice Statement allows for change “ where it is right to do so ”, and appellate judges can distinguish but… is this hair-splitting? Can it lead to an over-complicated body of law?

Advantages/disadvantages It is a very slow system: reform by judges can only happen when cases are appealed (Supreme Court approximately50/year).

How Precedent operates within the English system of Case Law 1. On what Latin maxim is judicial precedent based? 2. What does this maxim mean? 3. What do you understand by ‘binding’ precedent? 4. What does the system of precedent provide, and how? 5. Why must the legal reasons for past decisions be made clear? 6. In one word, what do we call the judge’s speech at the end of case? 7. What does the ratio decidendi explain? 8. What does the ratio decidendi create? 9. What is the meaning of obiter dicta? 10 What might the obiter dicta contain? 12 What difficulty sometimes arises between the ratio decidendi and the obiter dicta? 13 Explain the meaning of ‘original precedent’. 14 Where will the judge look for guidance in creating an original precedent? What kind of reasoning is this? 15 In relation to precedent, what is generally accepted nowadays?

How precedent works within the hierarchy of courts 1. Why can the doctrine of precedent be described as rigid? 2. Since 1973, what has been the highest court affecting English law? 3. Why are decisions made by the ECJ so powerful? 4. What is the most senior national court in the United Kingdom? 5. Explain the significance of London Street Tramways v London County Council (1898). 6. Why do you think the Lords reached this decision in 1898? 7. What does the Practice Statement 1966 empower the Lords to do? 8. When is this power used? 9. Why is this power used sparingly? 10 Name the two Divisions of the Court of Appeal. 11 Which Division is allowed more flexibility, and why? 12 Name the three Divisional Courts below the Court of Appeal. 13 These three Divisional Courts are bound by the decisions of the courts above them, but are they also bound by their own past decisions? 14 To what extent is the High Court bound by precedent? 15 Explain how precedent affects the so-called inferior courts.