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.

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) Rationale is to create fairness and certainty in the law Judicial Precedent 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.

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 means reason for deciding. 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. Ratio Decidendi 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 dicta statements are not binding on a later judge. 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 guilty of reckless driving. Case 2 A woman driving a BMW runs over an old man who was crossing the road. Is she guilty too?

What would we need to know?

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 question as to WHY guilt was found is all important. The Key Question The question as to WHY guilt was found is all important.

Material Facts To 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: The old lady was lawfully and carefully crossing by a pedestrian crossing. Alfred was speeding. Alfred was not looking where he was going. 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 Hierarchy of the Courts The European Court of Justice The Hierarchy of the Courts The House of Lords The Court of Appeal Civil Criminal The High Court The Crown Court Family Division Chancery Division Queen’s Bench Division County Court Magistrate’s Court

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 Follow Overrule Reverse Distinguish House of Lords Practice Statement 1966 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).

Young v Bristol Aeroplane 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.