Judicial Precedent Part 1
Judicial Precedent Part 1
INTRODUCTION
Judicial precedent means the process whereby judges follow previously decided cases
where the facts are of sufficient similarity. The doctrine of judicial precedent involves
an application of the principle of stare decisis ie, to stand by the decided. In practice,
this means that inferior courts are bound to apply the legal principles set down by
superior courts in earlier cases. This provides consistency and predictability in the
law.
RATIO DECIDENDI AND OBITER DICTUM
The decision or judgement of a judge may fall into two parts: the ratio decidendi
(reason for the decision) and obiter dictum (something said by the way).
RATIO DECIDENDI – The ratio decidendi of a case is the principle of law on
which a decision is based. When a judge delivers judgement in a case he outlines the
facts which he finds have been proved on the evidence. Then he applies the law to
those facts and arrives at a decision, for which he gives the reason (ratio decidendi).
OBITER DICTUM – The judge may go on to speculate about what his decision
would or might have been if the facts of the case had been different. This is an obiter
dictum.
The binding part of a judicial decision is the ratio decidendi. An obiter dictum is not
binding in later cases because it was not strictly relevant to the matter in issue in the
original case. However, an obiter dictum may be of persuasive (as opposed to
binding) authority in later cases.
A difficulty arises in that, although the judge will give reasons for his decision, he will
not always say what the ratio decidendi is, and it is then up to a later judge to “elicit”
the ratio of the case. There may, however, be disagreement over what the ratio is and
there may be more than one ratio.
PERSUASIVE PRECEDENT
This is a precedent that is not binding on the court, but the judge may consider it and
decide that it is a correct principle, so he is persuaded that he should follow it.
Persuasive precedent comes from a number of sources:
1. Courts lower in the hierarchy
Such as example can be seen in R v R (1991).
R v R (1991)
The House of Lords agreed with and followed the same reasoning as the Court of
Appeal in deciding that a man could be guilty of raping his wife.
4. A dissenting judgment
Where a case has been decided by a majority of judges, the judge who disagreed will
have explained his reasons. If that case, or a similar case, goes on appeal to the Supreme
Court, it is possible that the Supreme Court may prefer the dissenting judgment and
decide the case in the same way.
The dissenting judgment has persuaded them to follow it.
HOUSE OF LORDS:
The main debate about the Supreme Court (and previously the House of Lords) is the
extent to which it should follow its own past decisions, and the ideas on this have
changed over the years. Originally the view was that the House of Lords had the right to
overrule past decisions, but gradually during the 19th century this more flexible approach
disappeared. By the end of that century, in London Street Tramways v London County
Council (1898), the House of Lords held that certainty in the law was more important
than the possibility of individual hardship being caused through having to follow a past
decision. So from 1898 to 1966 the House of Lords regarded itself as being completely
bound by its own past decisions unless the decision had been made per incuriam, that
is ‘in error’. However, this idea of error referred only to situations where a decision
had been made without considering the effect of a relevant statute. This was not felt
to be satisfactory, as the law could not alter to meet changing social conditions and
opinions, nor could any possible ‘wrong’ decisions be changed by the courts. If there was
an unsatisfactory decision by the House of Lords, then the only way it could be changed
was by Parliament passing a new Act of Parliament. This happened in the law about
intention as an element of a criminal offence. The House of Lords in DPP v Smith (1961)
had ruled that an accused could be guilty of murder if a reasonable person would have
foreseen that death or very serious injury might result from the accused’s actions. This
decision was criticised as it meant that the defendant could be guilty even if he had not
intended to cause death or serious injury, nor even realised that his actions might have
that effect. Eventually Parliament changed the law by passing the Criminal Justice Act
1967.
From 1966, this Practice Statement allowed the House of Lords to change the law when it
believed that an earlier case was wrongly decided. It had the flexibility to refuse to follow
an earlier case when ‘it appeared right to do so’. This phrase is, of course, very vague and
gave little guidance as to when the House of Lords might overrule a previous decision. In
fact, the House of Lords was reluctant to use this power, especially in the first few years
after 1966. The first case in which the Practice Statement was used was Conway v
Rimmer (1968), but this involved only a technical point on discovery of documents. The
first major use did not occur until 1972 in Herrington v British Railways Board (1972),
which involved the law on the duty of care owed to a child trespasser. The earlier case of
Addie v Dumbreck (1929) had decided that an occupier of land would only owe a duty of
care for injuries to a child trespasser if those injuries had been caused deliberately or
recklessly. In Herrington the Lords held that social and physical conditions had changed
since 1929, and the law should also change.
There continued to be great reluctance in the House of Lords to use the Practice
Statement, as can be seen by the case of Jones v Secretary of State for Social Services
(1972). This case involved the interpretation of the National Insurance (Industrial
Injuries) Act 1946 and four out of the seven judges hearing the case regarded the earlier
decision in Re Dowling (1967) as being wrong. Despite this the Lords refused to overrule
that earlier case, preferring to keep to the idea that certainty was the most important
feature of precedent. The same attitude was shown in Knuller v DPP (1973) when Lord
Reid said: ‘Our change of practice in no longer regarding previous decisions of this
House as absolutely binding does not mean that whenever we think a previous precedent
was wrong we should reverse it. In the general interest of certainty in the law we must be
sure that there is some very good reason before we so act.’
From the mid-1970s onwards the House of Lords showed a little more willingness to
make use of the Practice Statement. For example, in Miliangos v George Frank (Textiles)
Ltd (1976) the House of Lords used the Practice Statement to overrule a previous
judgment that damages could be awarded only in sterling. More recently in Murphy v
Brentwood District Council (1990), the House of Lords overruled the decision in Anns v
Merton London Borough (1977) regarding the test for negligence in the law of tort.
Another major case was Pepper v Hart (n1993) where the previous ban on the use of
Hansard in statutory interpretation was overruled. In Horton v Sadler and another (2006)
the House of Lords used the Practice Statement to depart from a previous decision of its
own. The case involved a personal injury claim, but the point of law being decided was
about the power to allow service out of time under s 33 of the Limitation Act 1980. The
House of Lords departed from their decision in Walkley v Precision Forgings Ltd (1979).
COURT OF APPEAL
As already stated, there are two divisions of this court, the Civil Division and the
Criminal Division, and the rules for precedent are not quite the same in these two
divisions.
Both divisions of the Court of Appeal are bound by decisions of the European Court of
Justice and the Supreme Court. This is true even though there were attempts in the past,
mainly by Lord Denning, to argue that the Court of Appeal should not be bound by the
House of Lords (now the Supreme Court). In Broome v Cassell & Co Ltd (1971) Lord
Denning refused to follow the earlier decision of the House of Lords in Rookes v Barnard
(1964) on the circumstances in which exemplary damages could be awarded. Again in the
cases of Schorsch Meier GmbH v Henning (1975) and Miliangos v George Frank
(Textiles) Ltd (1976) the Court of Appeal refused to follow a decision of the House of
Lords in Havana Railways (1961) which said that damages could only be awarded in
sterling (English money). Lord Denning’s argument for refusing to follow the House of
Lords decision was that the economic climate of the world had changed, and sterling was
no longer a stable currency; there were some situations in which justice could be done
only by awarding damages in another currency. The case of Schorsch Meier GmbH v
Henning was not appealed to the House of Lords, but Miliangos v George Frank
(Textiles) Ltd did go on appeal to the Lords, where it was pointed out that the Court of
Appeal had no right to ignore or overrule decisions of the House of Lords. The more
unusual feature of Miliangos was that the House of Lords then used the Practice
Statement to overrule its own decision in Havana Railways.
One area of law where the Court of Appeal need not follow the decisions of the House of
Lords/ Supreme Court is human rights cases. Section 2(1)(a) of the Human Rights Act
1998 states that courts must take into account any judgment or decision of the European
Court of Human Rights. In the case of Re Medicaments (No 2), Director General of Fair
Trading v Proprietary Association of Great Britain (2001) the Court of Appeal refused to
follow the decision of the House of Lords in R v Gough (1993) because it was slightly
different from decisions of the European Court of Human Rights. The Director General
case was about whether a decision should be set aside because of the risk of bias on the
part of one of the panel. In Gough the test for bias included the appeal court deciding
whether there was a real danger that the tribunal was biased. The Court of Appeal said
that in the European Court of Human Rights cases the emphasis was on the impression
which the facts would give on an objective basis. This they claimed was a ‘modest
adjustment’ of the test in Gough. However, this appears to be one situation in which the
Court of Appeal need not follow a Supreme Court/House of Lords decision.
OWN DECISIONS:
The first rule is that decisions by one division of the Court of Appeal will not bind the
other division. However, within each division, decisions are normally binding, especially
for the Civil Division. This rule comes from the case of Young v Bristol Aeroplane Co
Ltd (1944) and the only exceptions allowed by that case are:
● Where there are conflicting decisions in past Court of Appeal cases, the court can
choose which one it will follow and which it will reject.
● Where there is a decision of the House of Lords (now Supreme Court) which
effectively overrules a Court of Appeal decision the Court of Appeal must follow the
decision of the House of Lords/ Supreme Court.
● Where the decision was made per incuriam, that is, carelessly or by mistake because a
relevant Act of Parliament or other regulation has not been considered by the court.
The Civil Division of the Court of Appeal under Lord Denning tried to challenge the rule
in Young’s case, claiming that as it had made the earlier decision it could change it. As
Lord Denning said in Gallie v Lee (1969): ‘It was a self-imposed limitation and we who
imposed it can also remove it.’ This view was not shared by the other judges in the Court
of Appeal, as is shown by the statement of Russell LJ in the same case of Gallie v Lee
where he said: ‘The availability of the House of Lords to correct errors in the Court of
Appeal makes it, in my view, unnecessary for the court to depart from its existing
discipline.’ However, in Davis v Johnson (1979) the Court of Appeal refused to follow a
decision made only days earlier regarding the interpretation of the Domestic Violence
and Matrimonial Proceedings Act 1976. The case went to the House of Lords on appeal
where the Law Lords, despite agreeing with the actual interpretation of the law, ruled that
the Court of Appeal had to follow its own previous decisions and said that they
‘expressly, unequivocally and unanimously reaffirmed the rule in Young v Bristol
Aeroplane’. Since this case and, perhaps more especially since the retirement of Lord
Denning, the Court of Appeal has not challenged the rule in Young’s case, though it has
made some use of the per incuriam exception allowed by Young’s case.
Per incuriam
In Williams v Fawcett (1986) the Court refused to follow previous decisions of their own
because these had been based on a misunderstanding of the County Court rules dealing
with procedure for committing to prison those who break court undertakings. In Rickards
v Rickards (1989) the court refused to follow a case it had decided in 1981. This was
because of the fact that, in the previous case, it had misunderstood the effect of a House
of Lords decision. Even though the court did not follow its own previous decision Lord
Donaldson said that it would only be in ‘rare and exceptional cases’ that the Court of
Appeal would be justified in refusing to follow a previous decision. Rickards v Rickards
was considered a ‘rare and exceptional’ case because the mistake was over the critical
point of whether the court had power to hear that particular type of case. Also it was very
unlikely that the case would be appealed to the House of Lords. In R v Cooper (2011) the
Court of Appeal appears to have extended the scope of the per incuriam exception. The
narrow or traditional view of per incuriam is that it is used only where the earlier court
had failed to take into account all the relevant legislative provisions and/or case
authorities. R v Cooper involved the procedure to be followed in the Crown Court when
barring an individual convicted of a sexual offence from working with children or
vulnerable adults. A new system was being brought in under the Safeguarding Vulnerable
Groups Act 2006 and it was not clear what procedure should be followed. The Court of
Appeal overruled an earlier decision of its own on the basis that not all the material
considerations had been placed before the earlier court. This appears to be wider than
failure to take into account all relevant legislation and cases.
The Criminal Division, as well as using the exceptions from Young’s case, can also
refuse to follow a past decision of its own if the law has been ‘misapplied or
misunderstood’. This extra exception arises because in criminal cases people’s liberty is
involved. This idea was recognised in R v Taylor (1950). The same point was made in R
v Gould (1968). Also in R v Spencer (1985) the judges said that there should not in
general be any difference in the way that precedent was followed in the Criminal
Division and in the Civil Division, ‘save that we must remember that we may be dealing
with the liberty of the subject and if a departure from authority is necessary in the
interests of justice to an appellant, then this court should not shrink from so acting’. In R
v Simpson (2003) the Court of Appeal (Criminal Division), a five-judge panel, overruled
an earlier decision made by a three-judge panel on the basis that the law had been
misunderstood or misapplied. The case stressed that there was discretion available to a
five-judge constitution of the court to decide that a previous decision of the Court of
Appeal (Criminal Division) should not be treated as binding. This led to the assumption
that a five-judge panel always had the discretion to depart from earlier decisions of a
three-judge panel. However, in R v Magro (2010) the Court of Appeal itself pointed out
that Simpson had not given them the right to overrule a three-judge panel where that
decision had been made after full argument and close analysis of the relevant legislative
provisions. In particular an earlier case should not be overruled when the consequences of
doing so would be to the disadvantage of the defendant.