operation of doctrine of precedent - model answer

• Judicial precedent is a system that requires judges to follow decisions made on the same points of Law by higher courts in earlier cases. The earlier case sets a precedent which judges in subsequent cases are obliged to follow. It is based on the principle of stare decisis (let the decision stand).
• Court Hierarchy - The courts must be organised into a strict hierarchy, which places each court in a position of either superiority or inferiority in relation to all other courts. Precedent always operates on a system from the top down. It is always binding on all courts below where the decision was made, but not on the courts above. The current hierarchy of the English courts was first established by the Judicator Acts 1873-5.
• In the English legal system, the Supreme Court is the highest appeal court and binds all courts below it. The Court of Appeal is bound by decisions of Supreme Court even if it considers them wrong and it binds all courts below. The High Court is bound by the Supreme Court and the Court of Appeal and normally follows previous decisions of another Divisional Court.
• Decisions of individual High Court judges are binding on the county courts. Decisions made on points of Law by judges sitting at the Crown Court are not binding, though they are of persuasive authority. The decisions of the County and Magistrates' courts are not binding.
• Law Reports The effectiveness of a doctrine of precedent depends on the availability of full and accurate reports of decided cases. There has never been in England any official system of compiling Law reports. Law reporting is a matter of private enterprise. To merit reporting, a case must either introduce a new principle or rule of Law, materially modify an existing principle of Law, or settle a doubtful question of Law.
• Questions of interpretation of statutes and important cases illustrating new applications of existing principles are also included. The most highly regarded Law reports are The Law Reports produced by the Incorporated Council for Law Reporting, (ICLR) set up for this purpose in 1865 and published in separate volumes of Appeal Cases (i.e. House of Lords, Court of Appeal, Divisional Courts).
• Other examples of Law reports include the All-England Law Reports, various newspapers and journals e.g. The Times, the New Law Journal and many recent cases are reported on-line (e.g. BAILLI). Subscription services such as LEXIS NEXIS are comprehensive but expensive.
• Ratio decedendi. The Ratio Decidendi ('reason for deciding') is the key reason for the judge's decision, the part of the judgment which forms the binding precedent. An example is in the case of Donoghue v Stevenson 1932 (the snail in the ginger beer bottle case) in which the neighbour test was established to determine when a person would be under a duty of care.
• Persuasive precedent-Obiter dicta. Where there is no binding precedent, a judge must look for persuasion (guidance) and judges can be persuaded by a variety of sources. Obiter dicta ('other things said') are statements included in a judgment which are incidental and not strictly necessary for the judge's decision. These statements are not binding on future courts. However, in future cases, judges may look at these to see whether there is any relevant guidance in them.
• For example, in the case of R v Howe 1987 which concerned the defence of duress to a charge of murder, the House of Lords suggested that the defence of duress should not be available for attempted murder. This obiter dictum.-was picked up in R v Gotts 1992 and became the ratio decidendi on this point.
• Decisions of foreign jurisdictions. Other types of persuasive precedent include decisions of other legal systems.

  Decisions of Scottish, Canadian and Commonwealth Courts have been used. For example, in R v R 1991, the House of Lords created a new binding precedent that a man under English Law could be guilty of raping his wife. This decision was based, in part, on the fact that the Scottish courts had introduced matrimonial rape some years earlier.
• Also, in Lister v Hester Hall, 2001, the House of Lords created a new binding precedent based on the decision of the Canadian Supreme Court that a residential school was vicariously liable for the sexual abuse of its residents by the warden.
• Decisions of lower courts. The decisions of courts lower in the hierarchy can also be persuasive. A binding judicial precedent can only be made by the superior courts so, as a case passes through the inferior courts, what is said by the inferior court judges can be persuasive to the superior court judges. In Rv R, 1999, both the Magistrates Court and the Crown Court could have dismissed the case as there was no such offence as marital rape. The fact they allowed the case to proceed was persuasive on the final decision of the House of Lords.
• Disapproval of lower courts. In the superior courts, appeals are heard by several judges. The majority decision forms the ratio decedendi which is binding, and the minority decision forms the dissenting judgement which can be persuasive. In Anns v Merton London Borough Council 1978, the House of Lords gave a majority decision that negligent surveys by local authorities did not give rise to a claim in negligence. All subsequent courts had to follow this precedent although all gave dissenting judgements.
• In 1990, in Murphy v Brentwood, the House of Lords changed this precedent in reliance, in part, on the dissenting judgements.
• Views of legal academics. Finally, the views of legal academics can persuade superior court judges in making a decision. In R v Collins, 1972, the Court of Appeal made reference to the comments of Professors Smith and Hogan in the textbook, 'Criminal Law'.