2A.4.1 The doctrine of judicial precedent Flashcards
Stare decisis
Judicial precedent is based on the Latin maxim stare decisis, which means ‘stand by what has been decided and do not unsettle the established’.
How does ‘stare decisis’ work as precedent?
Judges are able to make decisions in court, either to interpret parliamentary law, or to decide a rule where there is no Parliamentary law. These decisions, when reported, can be looked at by other judges in later cases. If the later case uses similar rules, then a judge in the later case can follow the earlier decision. This supports the idea of fairness and provides certainty in the law.
Ratio decidendi
‘The reasons for deciding’. This is what creates a precedent for a judge to follow in future cases.
The ratio decidendi is the important principles from the judgement.
If the ratio is given by a judge in a higher court, it will carry great authority and must be followed by all lower level judges in later cases.
Importance of the ratio decidendi in appeal courts
In appeal cases where there is a particularly important or complicated point of law, more than one judge may want to explain the legal reasoning that led to a decision. This can cause problems in later cases as each judge may have had a different reason for their decision, so there will be more than one ratio decidendi. It will be for lawyers and judges in later cases to choose which ratio they will use in court.
At the end of a case, a judge will make a judgement, which includes…
- A summary of the facts of the case
- A review of the arguments put by the advocates or the parties
- An explanation of the principles of law being used to come to the decision
Obiter dicta
- ‘Other things said’.
Sometimes a judge will speculate on what the decision would have been if the facts of the case had been different. This hypothetical situation is part of the obiter dicta and the legal reasoning put forward may be considered in future cases, although it is not a binding precedent.
Case study: R v Howe (1987) and R v Gotts (1992)
An example of a ratio decidendi in a decision is the case of R v Howe (1987). The House of Lords decided that the defence of duress was not available to a charge of murder. They also expressed the opinion that duress is not a defence to a charge of attempted murder. They also expressed the opinion that duress is not a defence to a charge of attempted murder. This opinion was obiter dicta, as Howe was not charged with attempted murder and it was directly relevant to the facts of the case.
Obiter statements such as this can become persuasive in later cases. For example, in the case of R v Gotts (1992), the House of Lords followed the obiter statement in R v Howe and, in their ratio decidendi, ruled that duress cannot be a defence to a charge of attempted murder.
