Judicial Precedent

Judicial Precedent

• Past judges create law for future judges to follow.
• Also known as Case Law.

The Doctrine of Stare Decisis

• English system of precedent based on Latin maxim Stare Decisis Et Non Quieta Movere.
• This means “stand by what has been decided and do not unsettle the established”-supports fairness and provides certainty in law.
• At the end of a case the judge makes a speech stating the decision and gives the reason for the decision- considering arguments and facts then explain the principles of law he is using to come to the decision.
• Ratio Decidendi = reason for deciding.
• This is the information that is used to help judges decide in future cases.
• Obiter Dicta= “other things said”- it is not binding precedent.
• Judges in future cases do not have to follow it - judge sometimes speculates on what his decision may have been if the facts of the case were different.
• Legal reasoning may be put forward in future cases from this Obiter Dicta.
• Difficulty in distinguishing the ratio decidendi from the obiter dicta as the speech is continuous.

Original Precedent

• If a point of law in a case has never been decided before then whatever the judge decides will form a new precedent for future cases to follow.
• Judge finds case's that are closest in principle to the one he is deciding on and may decide to use similar rules
• This is called REASONING by ANALOGY.
• The judge is creating a new law.
• Hunter and others v Canary Wharf Ltd and London Docklands Development Corporation 1995. Creating new law by analogy can be seen here. Refers this case of tower obstructing a TV signal, to Bland v Moselely 1611, “which is a matter only of delight and not of necessity.

Binding Precedent

• Precedent in an earlier case must be followed, even if the judge in the present case disagrees with the legal principal.
• To be binding the cases have to be sufficiently similar as well as being made by a senior court (sometimes the same level court).

Persuasive Precedent

• Precedent that is not binding but the judge may decide to consider it and decide it is a correct principal - he is persuaded to follow it.
• Persuasion comes from these sources:

1. Courts lower in the hierarchy- 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. R v R 1991.
2. Decisions of the Judicial Committee of the Privy Council- this court isn't part of the hierarchy, decisions not binding. Many members are also members of the House of Lords therefore the decisions are respected and may be followed. The Wagon Mound 1961.
3. Statements made Obiter Dicta (particularly House of Lords decisions) in R v Howe 1987 House of Lords ruled that duress could not be a defence to murder. As an Obiter Dicta statement they added that duress would not be available as a defence to attempted murder. It was followed as persuasive precedent in the Court of Appeal in R v Gotts 1992.
4. A dissenting judgment: When a case has been decided by a majority vote (2-1 in the Court of Appeal) the judge who disagreed would have given his reasons. In the event that the case goes to the House of Lords or a later case, and the judge's side with the dissenting argument, they then decide the case in the same way. Dissenting judgment has persuaded them to follow it.
5. Decisions of courts in other countries. -They have to use common law system. Applies to Commonwealth countries such as Canada, Australia and New Zealand.

The Operation of Precedent and the Hierarchy of the Courts

• Every court is bound to follow any decision made by a court above it in the hierarchy.
• In general, appellate courts (courts which hear appeals) are bound by their own past decisions.

The European Court of Justice

• Since 1973 is the highest court in our legal system.
• For all points on European Law a decision made hear is binding on all other courts.
• Laws that are unaffected by European Law have the House of Lords as the Supreme Court.
• European Court will overrule its past decisions if it feels necessary=flexibility.

House of Lords

• Decisions bind all other courts in the English legal system.
• Not bound by own past decisions, although it will generally follow them.
• Practice Statement 1966 announced change in using precedent- although the Lords will follow it precedent. They will depart from a previous decision when it appears right to do so.
• They do not reverse previous precedent whenever they think it is wrong, instead in the general interest in the certainty of law they must be sure that there is some very good reason before they act.