Judicial Precedent

• Judicial is anything relating to judges.

  'Setting a PRECEDENT' is when you create a rule to be followed in similar situations in the future.

  Judicial Precedent = when judges create rules to be followed in similar cases in the future.
• The Rules of Judicial Precedent:

  • Stare Decisis = Stand by the Decision
  • Ratio Decidendi = Reason for the Decision
  • Obiter Dicta = Other Things Said
• Stare Decisis:

  • Forms the basis of the rules of Judicial Precedent.
  • Means that when there is no existing Act of Parliament to follow, judges must stand by decisions of other judges in previous similar cases, even if they disagree with them.
  • Schweppes 1965 and AT&E 1965
• Schweppes 1965 and AT&E 1965:

  • Decision made in Schweppes with 3 judges where one judge disagreed but decision was made on a 2-1 majority.
  • Later that day same point arose in AT&E and was presided over same three judges - but was no dissenting judgement.
  • Judge who dissented in Schweppes said: 1I am now bound by decision of majority in previous case, I have no alternative but to concur'.
  • Decision in Schweppes had become precedent to be followed by later cases.
• Ratio Decidendi:

  • Reason why decision was made in specific case.
  • Sets precedent to be followed in later cases.
  • What we call binding precedent because other judges/ courts are bound to follow it.
• Obiter Dicta:

  • Other things said by the judge in the case, which did not direct relate to the reason for the decision.
  • These do not set a precedent but can be helpful for future judges if they are stuck when making a decision. It is called persuasive precedent as it can persuade future judges.
  • Usually includes speculation over different outcomes in different situation.
• R v Howe 1987:

  • D and friends murdered two men. They claimed duress as they were under threat.
  • Ratio Decidendi: They were GUILTY as duress is not a defence to murder.
  • Obiter Dicta: The judge suggested it cannot be a defence to attempted murder either.
• R v Gotts 1992:

  • D was charged with attempted murder of his mother and pleaded duress as his father had threatened him.
  • He was GUILTY - the judge was not required to follow Howe because this was attempted murder, but he decided to be persuaded by the obiter dicta from that case, creating a new binding precedent which no must be followed by others.
• Types of Precedent:

  1. Original Precedent
  2. Binding Precedent
  3. Persuasive Precedent
• Original Precedent:

  • This is where there are no previous cases or Acts of Parliament on a topic, so it is the first time the subject has been looked at.
  • It then becomes binding precedent for future cases.
  • Happened in Donoghue v Stevenson.
  • Judges will use 'reasoning by analogy' to find an answer by looking at the closest types of cases and decisions.
  • Aldred's Case 1610
  • Hunter v Canary Wharf 1998
• Aldred's Case 1610:

  • You can sue in nuisance if you cannot enjoy your home life because your neighbors have installed a pig stew and the smell is unbearable.
  • However, you cannot sue because something has restricted your view, as a nice view is not a necessity.
• Hunter v Canary Wharf 1998:

  • 690 residents complained that when Canary Wharf was built in London it disrupted their TV signal.
  • Decision: You cannot sue for disruption to TV signal because it is not a necessity.
• Binding Precedent:

  • This is a rule that other courts MUST follow - they are bound by it once he precedent has been set.
  • An example would be the rule from R v Howe saying duress is no defence to murder - all future courts must follow this.
  • The facts of the cases must be sufficiently similar.
  • Also if Parliament have introduced an Act of Parliament since the precedent was set, the court must follow Parliament.
• Persuasive Precedent:

  • Precedent that does not have to be followed by the court. However, judges may find it helpful when deciding cases. Includes:

  1. Decisions of lower courts.
  2. Obiter Dicta comments
  3. Decisions of the Judicial Committee of the Privy Council
  4. Decisions from other countries
  5. Dissenting judgements.
• The Courts and Judicial Precedent:

  • Every court is required (bound) to follow decisions of higher courts).
  • The Court of Appeal and Supreme Court are usually the only ones who set original precedents.
  • They usually have to follow their own decisions, but there are exception.
• The Courts and Judicial Precedent:

  • The general rule is that the Supreme Court (formerly House of Lords) and the Court of Appeal are bound by their own past decisions.
  • However, there are some exceptions to this.
• Supreme Court (HoL):

  • London Street Tramways 1898 -> stated that the court cannot overrule itself, this is because the law requires certainty.
  • Practice Statemen 1966 -> gave the House of Lords the right to overrule itself, only "if it was right to do so".
  • Supreme Court -> when this was created in 2009 it was assumed the rule from the House of Lords applied here too, Austin v Southwark 2010 confirmed this and it is now in Practice Directions 3&4.
• Court of Appeal:

  • Has a Civil and a Criminal Division -> they are separate and do not bind one another, however they have to follow their own decisions within their Division.
  • Young v Bristol Airplane -> outlined three exceptions when the Court of Appeal can overrule itself:

  1. If are 2 conflicting CA decisions.
  2. If CA decision conflicts with House of Lords/ Supreme Court decision.
  3. If decision was made 'per incuriam' (in error)

  • R v Gould -> confirmed a 4th exception exists in the Criminal Division ONLY as liberty is at stake, 4. where the law has been misapplied or misunderstood.
• Methods of Handling Precedent:

  1. Follow
  2. Overruling
  3. Reversing
  4. Distinguishing
• Follow - the majority of the time judges will simply follow the existing binding precedent.

  • Shaw v DPP 1962
  • Knuller v DPP 1973
• Overruling - a court in a later case decides that a judge in the earlier case was wrong and overrules the precedent created. This can only be done by a higher court.

  • Anderton v Ryan 1985
  • R v Shivpuri 1986
• Reversing - similar to overruling, but this happens in the same case - so a decision is reversed on appeal.

  • Sweet v Parsley 1970
• Distinguishing - the judge decides the facts of the case are sufficiently different from the precedent, that a different decision is justified.

  • Balfour v Balfour 1919
  • Merritt v Merritt 1971
• • Balfour v Balfour 1919:
  • A couple had an informal, verbal agreement whilst married for the husband to send money to the wife when he worked away.
  • The Court decided this DID NOT need to continue after they separated.
  • Merritt v Merritt 1971:
  • A couple had a formal, written agreement created after separation for the husband to pay the wife to help pay off their mortgage.
  • The court decided this DID continue after separation as it was distinguished from Balfour due to agreement being made after separation.
• Sweet v Parsley 1970:

  • D rented out her house to students who - without her knowledge - smoked and grew cannabis on the property.
  • GUILTY at High Court
  • NOT GUILTY at House of Lords who REVERSED the High Court decision - due to impact on her reputation and livelihood.
• • Shaw v DPP 1962:
  • D created a 'ladies directory' where prostitutes could advertise their services.
  • GUILTY as the House of Lords created a crime of outraging public morals.
  • This set a binding precedent.
  • Knuller v DPP 1973:
  • D ran a magazine where gay men advertised to meet with other men.
  • GUILTY as the court FOLLOWED the decision from Shaw, even though they did not agree with it.
• • Anderton v Ryan 1985:
  • Woman charged with handling stolen property as she though the camcorder she had was stolen.
  • NOT GUILTY as there was no evidence it was stolen so the crime was impossible.
  • R v Shivpuri 1986:
  • Man charged with drugs offences but the drugs turned out to be other legal substances.
  • GUILTY as the intention was there even if the crime was impossible - overruling Anderton.
• Law Reporting:

  • Judges find decisions of previous cases through law reports.
  • All Court of Appeal and Supreme Court cases issue a formal judgement:
  • Decision and legal reasoning for each appeal judges.
  • This includes the binding or persuasive precedent.
  • They can be searched via:
  • The Time law reports
  • Law libraries (Actual books!)
  • Online Law libraries (LexisNexis, Westlaw)
  • Lower court s don't produce judgements but reported via media
• Advantages of Judicial Precedent:

  • Certainty in the law
  • There is some flexibility
  • Consistency
  • Time Saving
  • Allows original precedents to be set
• Disadvantages of Judicial Precedent:

  • It makes the law too rigid
  • Complexity and volume of case law
  • Slowness of Growth in the law
  • Retrospective Effect
  • Illogical distinctions drawn for distinguishing