5- Law Making: Judicial Precedent

Question 1

What is the doctrine of precedent?

Answer 1

Following the decisions of previous cases, especially of higher courts.
- This is also called case law.

Where the point in law in the previous case and the present case is the same, the court should follow the decision in the previous one.

This concept promotes the idea of fairness and provides certainty in law.

Law in the English legal system developed from custom and the decisions of judges in cases- this system is known as common law.

Question 2

Types of precedent

Answer 2

1. Original precedent
2. Binding Precedent
3. Persuasive Precedent

Question 3

Original Precedent

Answer 3

A decision on a point of law that has never been decided before.

As there are no past cases for the judge to base a decision on, he or she will look at cases which are the closest in principle and many decide to use similar rules.
- This way of arriving at a judgement is called
reasoning by analogy.

Question 4

Binding Precedent

Answer 4

A decision in an earlier case which must be followed in later cases.

The precedent must be followed even if the judge in the later case does not agree with the legal principle.

A binding precedent only created if

  - Facts of second case are sufficiently similar.
  - Decision was made by a senior court (or same 
    level) to the court hearing the case.

Question 5

Persuasive Precedent

Answer 5

A decision which does not have to be followed by later cases, but which judge may decide to follow.

It comes from a number of sources

Question 6

Sources from which Persuasive Precedent comes

Answer 6

1. Courts lower in the hierarchy
2. Decisions of the judicial committee of the privy council
3. Statements made obiter dicta
4. A dissenting judgement
5. Decisions of courts in other countries

Question 7

Sources of Persuasive precedent- Courts lower in the hierarchy

Answer 7

HoL 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)- D was charged with the attempted rape of his wife. The HoL overturned the matrimonial exception to rape. His conviction for rape was upheld.

Question 8

Sources of Persuasive precedent- Decisions of the judicial committee of the privy council

Answer 8

This court is not part of the court hierarchy in England and Wales and so its decisions are not binding.

However, many of its judges are also members of the Supreme Court, so the judgements of the Privy Council may often be followed.

The Wagon Mound (1961)- Fuel oil had been spilled from D’s ship on to the water. It spread towards the claimant’s area where it caught fire and burnt the area down. The Privy Council decided that the damage of the fire was too remote from the original negligent act of spilling oil.

Question 9

Sources of Persuasive precedent- Statements made obiter dicta

Answer 9

Obiter dicta means statements made in a judgement that were not part of the point of law in deciding the case.

R v Howe (1987)- It was held that duress could not be used as a defence to a charge of murder. As an obiter dicta statement, that duress could not be used as a defence for attemted murder. In R v Gotts (1992) the obiter dicta statement from R v Howe was followed and held that the defence of duress was not available for attempted murder.

Question 10

Sources of Persuasive precedent- A dissenting judgement

Answer 10

A judgement given by a judge who disagrees with the reasoning of the majority of judges in the case.

When a case has been decided by a majority of judges, or example 2:1, the judge who disagreed will have explained their reasons- dissenting judgement.

If the case goes to the next court, the following court may prefer the dissenting judgement and decide the case in the same way.

Question 11

Sources of Persuasive precedent- Decisions of courts in other countries

Answer 11

This happens with the countries that use the same ideas of common law as in our system, such as Canada, Australia and New Zealand.

Question 12

Rigid doctrine of precedent under which courts of England and Wales operate

Answer 12

Doctrine of judicial precedent has the effect that:

1. Every court is bound to follow any decision made by a court above it in the hierarchy and
2. In general, appellate courts are bound by their own past decisions.

Question 13

Hierarchy of the courts

Answer 13

CIVIL CASES

SUPREME COURT (Formerly HoL)
COURT OF APPEAL (Civil division)
DIVISIONAL COURTS
HIGH COURT
COUNTY COURT
MAGISTRATES’ COURT

CRIMINAL CASES

SUPREME COURT (Formerly HoL)
COURT OF APPEAL (Criminal division)
QUEEN’S BENCH DIVISIONAL COURT
CROWN COURT
MAGISTRATES’ COURT

Question 14

Types of courts

Answer 14

1. Apellate Courts

2. Courts of first instance

Question 15

Apellate Courts

Answer 15

Those that hear appeals

Question 16

Types of Apellate Courts

Answer 16

SUPREME COURT

 - Most senior national court- its decisions bind all other courts
 - It replaced the HoL in 2009
 - SC not bound by its own past decisions, nor by decisions by HoL, although it generally will follow them.

COURT OF APPEAL

- Next level down. Has 2 divisions
      - Civil
      - Criminal
 - Both divisions bound by decisions of the SC
 - They also have to follow past decisions of their own, although there are some exceptions.
 - CofA (Crim. Division) is more flexible when the point involves the liberty of the subject.

DIVISIONAL COURTS

 - 3 divisional courts
      - Queen’s Bench
      - Chancery
      - Family
 - They are bound by decisions of SC and CofA.

Question 17

Courts of First Instance

Answer 17

Any court where the original trial is heard

Appellate courts don’t hear any original trials- they only deal with appeals.

Often the appeal is about a point of law- appellate courts will be able to decide the law.

Question 18

Types of Courts of First Instance

Answer 18

HIGH COURT

 - Bound by decisions of all the courts above and binds the lower courts.
 - High Court judges don’t have to follow each other’s decisions but will often do so.

INFERIOR COURTS

 - There are 3:
      - Crown Court
      - County Court
      - Magistrates’ Court
 - Bound to follow decisions by all higher courts and it’s unlikely that a decision by an inferior court can create a precedent.
 - Exception: Ruling on a point of law by a judge in the Crown Court technically creates precedent for the Magistrates’ Court.

Question 19

The Supreme Court

Answer 19

Originally, the HoL had the right to overrule past decisions, but gradually, during the 19th century, this more flexible approach disappeared.

By the end of the century, in London Street Tramways v London County Council (1898), the HoL held that certainty in the law was more important than the possibility of individual hardship being caused through having to follow a past decision.

From 1898 to 1966 the HoL was bound by its own past decisions unless the decision had been made per incuriam (in error.)

This wasn’t satisfactory bc the law could not change to meet changing social conditions and opinions, nor could ‘wrong’ decisions be changed by the courts.

Question 20

SC- Practice Statement

Answer 20

It was realised that the HoL should have more flexibility, so in 1966, the Lord Chancellor issued a PRACTICE STATEMENT announcing a change to the rule in London Street Tramways v London County Council.

It stated that the HoL would depart from their own previous decisions when ‘it is right to do so’.

Question 21

Use of the PS

Answer 21

From 1966, the PS allowed HoL to change the law if they believed it was necessary.

However, the phrase ‘it is right to do so’ is a vague phrase, and gave little guidance as to when the HoL might overrule a previous decision.

HoL was reluctant to use this power in the first years.

Question 22

First use of PS

Answer 22

Conway v Rimmer (1968), but this only involves technical law on discovery of documents.

Question 23

First major use of PS

Answer 23

1972, in Harrington v British Railways Board (1972)- involving the law of 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.

Question 24

What happeneed in Harrington v British Railways Board (1972)

Answer 24

The Lords held that social and physical conditions had changed since 1929, and the law should also change (child had trespassed through a hole in a fence, had been electrocuted and suffered severe burns.

Technically, the owner didn’t have the duty of care, but due to growing population-less space for children to play, less supervision and increased use of electricity, children were more likely to trespass.)

Question 25

Was there still reluctance to the PS after Harrington v British Railways Board (1972)?

Answer 25

There was still great reluctance to use the PS, for example, in Knuller (Publishing and Printing and Promotions) Ltd v DPP (D published a magazine with ads by homosexuals seeking sexual practices.

Charged with conspiracy to corrupt public morals as established in Shaw v DPP.

HoL doubted the correctness of the decision in Shaw but declined to depart from it.)

From mid-70 onwards HoL were + willing to use PS.
Ex: Pepper v Hart (1993) where the previous ban on the use of Hansard (official record of debates in Par) (Davis v Johnson) in statutory instr. was overruled.

Question 26

First use of PS in criminal law

Answer 26

R v Shivpuri (1986) which overruled the decision in Anderton v Ryan (1985) on attempts to do the impossible (Anderton case made it an offence to attempt to commit a crime, in R v Shivpuri D thought he/she was dealing with drugs, but he/she wasn’t.

D was found not guilty bc he/she hadn’t committed a crime.)
Where the PS is used to overrule a previous decision, the past decision is ignored.

Question 27

First major use of PS in criminal law

Answer 27

R v G (2003).-

HoL overruled their previous decision in the case of Metropolitan Police Commissioner v Caldwell (1982) on the law of criminal damage (D had a grievance against the owner of a hotel.

He got very drunk and decided to set fire to the hotel, it didn’t cause serious damage.

D charged with arson, considered reckless bc, although he had not realised the risk, an ordinary careful adult would have.)

HoL overruled Cadwell and held that D (in R v G 2 children of 11 and 12 years had accidentally set fire to a co-op causing 1 million damage) is only reckless if they realised there is a risk and goes ahead and takes the risk.

Question 28

Was the PS transferred from the HoL to the SC?

Answer 28

When SC replaced HoL in 2009, the Constitutional Reform Act 2005 transferred the HoL’s powers to the SC.
- Initially not sure PS had been transferred to them too.

In Austin v London Borough of Southwark the SC confirmed that the power to use PS had been transferred to them.

However, they didn’t use it in this case bc they considered the need for tenancy law to be certain.

Question 29

Decisions o courts above CofAppeal

Answer 29

Both divisions bound by decisions of the HoL (now SC.)

There were attempts in the past, mainly by Lord Denning, to argue that the CofA shouldn’t be bound by the HoL.

In Broome v Cassell and Co. Ltd (1971) Lord Denning refused to follow an earlier decision of the HoL in Rookes v Barnard (1964.)

Again in the cases of Schorsch Meier GmbH v Hennin (1975) and Miliangos v George Frank (Textiles) Ltd (1976) the CofA under Lord Denning’s leadership refused to follow a decision of the HoL- challenging the rule.

HoL confirmed that the CofA had to follow the decisions of the HoL/SC.

Question 30

CofAppeal and its own decisions

Answer 30

FIRST RULE: Decisions by 1 division will not bind the other, but within each division, decisions are normally binding, especially for the Civil Division.

Question 31

Where does the rule regarding the CofAppeal and its own decisions come from?

Answer 31

This rule comes from the case of Young v Bristol Aeroplane Co. Ltd (1944) and there are only 3 exceptions to this rule.

1. There are conflicting past decisions: CofA chooses 1 decision and chooses the other.
2. Where there is a HoL/SC decision which effectively overrules the CofA decision- CofA must choose the HoL/SC one.
3. Where the decision was made ‘per incuriam’ (by error)- bc another AoP or regulation had not been considered by the court.

The rule in Young’s case was confirmed in Davis v Johnson (1979), where the CofA tried to challenge this rule but the HoL confirmed that the CofA should follow its own previous decisions.

Since this case the CofA has not challenged the rule in Young’s case, though it has made use of the per incuriam exception.

Question 32

CofAppeal Criminal Division

Answer 32

As well as using the exceptions of the Young’s case, it can also refuse to follow a past decision of its own if the law has been ‘misapplied or misunderstood’.
This idea was recognised in R v Taylor (1950) and R v Gould (1968).

In R v Spencer (1985) the judges said that there should be no difference between the way precedent was followed in the Civil and Criminal Division.

Question 33

What are the different parts of a judgement?

Answer 33

• Ratio decidendi

- Obiter dicta

Question 34

What is stare decisis?

Answer 34

Doctrine of precedent based on Latin “stare decisis et non quieta movere”, shortened to “stare decisis.”
- Stand by what has been decided and do not
unsettle the established.

This means that where the point of law in the previous case and the present case is the =, the court hearing the present case should follow the decision in the previous one.

This promotes the idea of fairness and promotes certainty of the law.

Precedent can only work if the legal reasons for past decisions are known, so at the end of a case there will be a judgement (reasons and principles for decision.)

Question 35

What is ratio decidendi?

Answer 35

The reason for the decision, whcich includes the judges used to reach that decision. This forms a precedent for future cases.

Question 36

Judgement- speeches made depending on the judges

Answer 36

There can be more than one speech depending on the number of judges.

COURTS OF FIRST INSTANCES- only 1 judge= 1 judgement.

HIGH COURT/ CofA- at least 2 and usually 3 judges.

SC- uneven number of judges (3,5,7,9 or 11.)

Just bc there are 2 or + it doesn’t mean that there will always be several judgements: common for 1 judge to give a judgement and then the other/s simply to say “I agree”.
- However, where there’s a complicated point of law, more than 1 judge may want to explain their legal reasoning on the point.

It can cause problems in later cases as judges will have different reasons for their decisions and therefore different ratio decidendi.

A major problem is to divide ratio decidendi from the obiter dicta.

Older judgements are usually in a continuous form, without any headings specifying what is part of the ratio and what is not.
- Judge will have to decide.

Question 37

What is obiter dicta?

Answer 37

Ratio decidendi is only part of a judgement that forms a precedent.
Rest of the judgement is obiter dicta (‘other things said’)
It is not binding on other courts.

Sometimes a judge might speculate on what his/her decision would have been if the facts of the case had been different.
- This hypothetical situation is part of the obiter dicta
and it may be considered in future cases, although
it is not binding precedent.

Example of obiter dicta previously explained: R v Howe (1987.)

Question 38

Law Reporting

Answer 38

In 1865 the Incorporated Council of Law Reporting was set up (controlled by the courts.)
Reports became accurate, with a judgement usually written word by word.

There are also law reports where the citations show which court heard every case (Ex: UKSC- SC case, EWCA Civ- CofA (Civil Div.))
Other well- established reports:
All England Reports (All ER)
Weekly Law Reports (WLR)

All HC, CofA, SC and HoL (1996-) cases are now reported on the Internet.

Question 39

Operation of Precedent- Following

Answer 39

If the facts of the present case are = as the previous precedent, the judge should follow that decision.

If the decision is by a court above or on the = level as the present court, the judge must normally follow the previous precedent.

Question 40

Operation of Precedent- Overruling

Answer 40

A court in a later case states that the legal rule decided in an earlier case is wrong.

Happens when a higher court overrules a decision made by a lower court or the SC uses the PS to overrule a past decision of its own.

Question 41

Operation of Precedent- Distinguishing

Answer 41

A method by which a judge avoids following a past decision- therefore avoiding binding precedent.

The facts of the case are sufficiently different for the judge to draw a distinction between the present case and the previous precedent. The judge is then not bound by the previous case.

Question 42

Which 2 cases demostrate the process of distinguishing?

Answer 42

Balfour v Balfour (1919) and Merritt v Merritt (1971.)

Both cases involved a wife making a claim against her husband for breach of contract.

In the 1st case it was decided that the claim couldn’t succeed bc there was no legal contract, just a domestic arrangement.

In the 2nd case, the court used the process of distinguishing.

The 2nd case was successful bc it was sufficiently different to the previous one, there was a legally enforceable contract.

Question 43

How many points are there in relation to precedent and AofP?

Answer 43

2

Question 44

1st point in relation to precedent and AofP

Answer 44

When new AoP is passed, which contains a provision which contradicts a previously decided case, that case decision will cease to have effect. The AoP is now the law on that point.

EXAMPLE: When Par passed the law reform (Year and a Day Rule) Act in 1966. Up to then judicial decisions meant that a person could only be charged with murder/ manslaughter if the victim died within a year and a day of receiving the injuries. The Act enacted that there was no time limit for the death of the victim, so cases after 1966 follow the Act.

Question 45

2nd point in relation to precedent and AofP

Answer 45

When an Act is unclear and needs to be interpreted by the court then that decision on the interpretation is a precedent for the future.

EXAMPLE 1: Theft Act 1968 defined theft as being where a person ‘dishonestly’ appropriates property belonging to another with the intention of permanently depriving the other of it. However, the Act did not define ‘dishonestly’ and it was defined in R v Ghosh (1992.)

EXAMPLE 2: Offences Against the Person Act 1861. Usage of different wording in 2 sections: ‘cause’ and ‘inflict’. Problems were settled when the HoL in R v Burstow (1997) stated that it would be absurd to differentiate between both sections.