Judicial Precedent

1. Ratio Decidendi / Obiter Dicta / Stare Decsis
1. 1. Ratio Decidendi
  1. This means reasons for the decision
    1. This is the judgement at the end of the case
      1. 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. 2. Obiter Dicta
  1. This means other things said by the way
    1. The non-binding part of the decision which does not have to be followed by other judges
      1. 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. 3. Stare Decisis
  1. This means let the decision stand
    1. It provides certainty through treating like cases in the same manner.
2.Law Reporting
1. 1. What is a law report?
  1. Record of judgement in a case
    1. Contains the legal arguments and facts of a case
      1. 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. 2. What does it contain?
    1. 3. Who publishes law reports?
3. Binding and Persuasive Precedent
1. 1. Binding Precedent
  1. Precedent in an earlier case must be followed in a later case
    1. E.G - R v Emmett, where the rule of R v Brown was confirmed
    2. Precedent is not binding in court so lower courts do not have to follow a decision made by a higher court
      1. 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. 2. Persuasive Precedent
4. Methods of avoiding Judicial Precedent
1. 1. Distinguising
  1. When a judge finds facts of the face different from him/her to draw a distinction between the previous case and present case
  2. Balfour v Balfour
    1. Merrit v Merrit
      1. Courts distinguished the case because:
        Agreement was made after they had separated and was made in writing.
    2. Similar because both cases involved a woman making a claim against her husband for breach of contract.
    3. There was No legal binding contract for it to succeed.
    4. Ratio Decidendi = No intention to create legal relations when an agreement is made within marriage.
      1. WHY IT DIDNT SUCCEED
2. 2. Overuling
  1. When a higher court overules an earlier decision made by a lower court
    1. OR, does not follow a precedent set in a previous case either by itself or a lower court
      1. E.G - Supreme court can overrule a decision made by CA
      2. 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. 3. Disapproving
  1. Have or express an unfavorauble opinion about something
    1. When a judge expresses he/she believes the precedent is wrong.
      1. 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.
Advantages of Judicial Precedent
1. 1. Certainty in the Law
  1. Lawyers must be able to advise their clients of the likelihood of success in a case.
    1. Saves time - people do not go unecessarily
      1. 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. 2. Law made by experts
    1. Argued that judges are in a better position to make laws than MP's
      1. Due to their expertise in the law
        Years of legal experience
        MP's make laws through Acts of Parliament
      2. LADY HALE
        First from Cambridge Uni and graduated top of her class
        Now sits in the Supreme Court
2. 3. Development of the Law - Original Precedent
  1. Lord Denning said that law cannot cover every situation that may arise
    1. GILLICK v WISBECH
      1. 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
  2. 4. Development of the Law - Correcting Mistakes
    2. Practice Statement 1966 - SC can depart from its own decisions when it considers it is right to do so.
      1. 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
Disadvantages of Judicial Precendent
1. 1. Rigidity
  1. Lord Denning believed that Court of Appeal do not have enough flexibility to change its own previous decisions when they were wrong
    1. AND CA did not have the power to change a decision of HOL even if they disagreed with it
      1. HOL confirmed CA are bound by the HOL decisions and are bound by its own decisions.
2. 2. Undemocratic
  1. As judges’ role can be said to be applying law passed by Parliament rather than making law
    1. Judges are un- ellected
      1. DONOGHUE V STEVENSON AND GILLICK
3. 3. Retrospective Effect
  1. Judges make changes to the law so they are often changing the law related to events that occurred before the case came to court
    1. Unfair = D may have been acting legally at the time of the relevant act.
      1. Before the Law was changed
  2. R v R
    1. Husband was not acting ILLEGALLY when he 'raped' his wife

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Judicial Precedent

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