judicial precedent

• Judicial precedent

  .The English and Welsh legal system is a common law system (murder is a common law offence), which means that much of our law has been developed over time by courts. This is done through different cases coming through judges. 

  .Our law is developed by judges, using a system of judicial precedent.

  .Judicial precedent - refers to the source of law where past decisions of the judges create law for future judges to follow. It is also known as case law.
• Why we need precedent 

  .Certainty and consistency

  .Time saving

  .Flexibility

  .Judges are legal experts

  .Development of the law
• Judicial precedent

  The basis of the system of precedent is the principle of : 

  1) Stare Decisis

  (stand by what has been decided)

  1a)Like cases are decided alike

  A later court must use the same reasoning as a previous case where the two cases raise the same legal issues e.g. two murder cases are tried in the same way

  1b)Higher courts bind lower courts

  Decisions of higher courts are binding on lower courts e.g. the crown court governs the magistrates court 

  .These are also known as the two parts to precedent
• Like cases are decided alike

  2)The judgement

  2a)Ratio Decidendi

   (reasons for deciding)

  .This is the binding precedent

  .Based on facts of the case

  .Main part of the judgement

  .The part of judgement that future judges have to follow due to it being binding

  2b)Obiter Dicta 

  (other things said)

  .This is the persuasive precedent

  .Anything not related to the case but feels is important

  .Part of judgement that doesn't have to be followed by future judges as its persuasive
• Examples of ratio and obiter

  .R V Howe 1987 - this case involved someone who killed another whilst under duress. The supreme court ruled that duress couldn't be a defence to a charge of murder (ratio), the court also stated that it couldn't be used as a defence to a charge of attempted murder either (obiter).

  .R V Gotts 1992 - this case involved someone who attempted to kill another whilst under duress. The obiter statement in R V Howe was followed by the Court of appeal in this case. This means the obiter in the R V Howe case had become Ratio. 
• 3 types of precedent

  .Original - when the point of law has not been decided before

  .Binding - when the decision was made by a higher court and all courts below it must follow it in cases that are sufficiently similar

  .Persuasive - where a judge does not have to follow the past decision but might be persuaded to do so
• Original precedent

  .This is where judges are making law in an area where the law didn't exist before.

  .Some areas of our law originate entirely from judicial precedent, in other words, laws made by judges. This is called original precedent which is based on declaration theory
• Original precedent cases

  .Two examples of this are

  > R V R 1991 - first time it was recognised that marital rape could be an offence and was made illegal. Before this case, there was no law in this area.

  >Donoghue V Stevenson 1932 - Court of Appeal held in this case that there is no duty of care (as her friend had brought the beer) between a manufacturer and a consumer. Later, the decision of this case was changed by the Supreme Court to state there is a duty of care owed. This means even without a contract, a duty of care can be owed.
• Persuasive precedent 

  .Persuasive precedent is judgements which don't have to be followed, but could provide good law for judges to follow : 

  >Courts lower in the hierarchy

  >Decisions made in emergency situations

  >Statements made in obiter dicta

  .These persuasive precedents must come from somewhere. Therefore, we say there are many different sources of persuasive precedent.
• Sources of persuasive precedent 

  .1) Courts lower in the hierarchy

  • R V R 1991 - which the supreme court agreed with the court of appeals decision in deciding that a man could be guilty of raping his wife. The supreme court was persuaded into following the court of appeals decision even though they didn't have to.
• Sources of persuasive precedent 

  .2) Decision made in emergency situations

  • Re A 2000 Conjoined Twins - decisions made in emergency situations are not binding only persuasive.  In this case, the doctors separated the two twins without the parents permission to save them.  The doctors were able to rely on the defence of necessity when taken to court.
• Sources of persuasive precedent

  3) Statements made in obiter dicta

  • In R V Howe 1987, the supreme court ruled duress couldn't be used as a defence for murder (ratio) and that it couldn't be used as a defence for attempted murder (obiter). In R V Gotts 1992 the obiter statement in R V Howe was followed by the Court of appeal in this case. The judge in this case didnt have to follow the obiter from R V Howe but felt it was good case law.
• Avoidance techniques (awkward precedent)


  .These are ways judges try to avoid following precedent.

  .There are three avoidance techniques : 

  .1) Overrule 

  .2) Reverse 

  .3) Distinguish 
• Avoidance techniques (awkward precedent) - overrule

  .1) Overrule 

  • Higher courts can overrule lower courts. E.g. in the case of Candler V Crane Christmas & Co 1951 (in this case, the court of appeal said you can't claim for pure economic loss) was overruled by Hedley Byrne V Heller & Partners Ltd 1964 (in this case, the supreme court overruled the decision and said they can claim for pure economic loss)
• Avoidance techniques (awkward precedent) - reverse 


  .2) Reverse 

  • On appeal a higher court may change the decision of a lower court of the same case. E.g. Donoghue V Stevenson. In this case, on appeal, the supreme court reversed the decision of the court of appeal and decided there was a duty of care owed even if there was no contract.
• Avoidance techniques (awkward precedent) - distinguish 


  .3) Distinguish 

  • Where a lower court is able to point to material differences that justify the application of different principles. E.g. Balfour V Balfour ( in this case there was no money claimed as the husband and wife only had a verbal agreement) was distinguished in Merritt V Merritt ( in this case the claim was successful as the judge distinguished from Balfour V Balfour as the second case had a written agreement.)
• Supreme court and the practice statement

  .Until 1966, the supreme court was bound by its own previous decisions as held in London Tramways V LCC 1898. Previously, the supreme court was only allowed to depart from their previous decisions when law was made ‘per incuriam’ (in error). The problem with this is that the law becomes outdated and too rigid.
• Supreme court and the practice statement

  .In 1966, the Lord Chancellor ( Lord Gardener) issued the practice statement allowing the Supreme court to depart from their previous decisions ‘where it appears right to do so’. This acts as a warning to supreme court judges to be careful when changing decisions.

  .It was issued because it was recognised by the law lords that ‘too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law’.
• Supreme court and the practice statement

  Important points : 

  • The practice statement should be used reluctantly
  • The power to use the personal statement only applies to the supreme court
  • The main role of a judge is to apply the law, not make it
  • The phrase ‘when it appears right to do so ‘ is very vague and there is little guidance as to what it actually means.
  • It clears up the problem that judges may have created when distinguishing cases e.g. Herrington V BRB and Addie V Dumbreck
• Use of the practice statement in civil cases

  .First ever civil use - This was used two years after it was first issued and the case was Conway V Rimmer (1968) and the practise statement was used in a small, minor technical point 

  .Major use - Herrington V BRB 1972 departed from Addie V Dumbreck 1929. As judges didn’t agree with Addie they began distinguishing in their cases. 
• Use of the practice statement in civil cases

  .Famous use - This was famous due it being controversial. Pepper V Hart 1993 (This case said hansard can be used as a last resort) was distinguished from Davis V Johnson 1979 (This case said hansard can’t be used by judges as its a political document and judges aren't able to be influenced by politics).

  .Reluctant to use the practice statement - Jones V Secretary of State 1972 in this case, 4/7 judges refused to use the practice statement even though they knew the law was wrong.
• Use of the practice statement in civil cases

  .Direction to use the practice statement - Knuller V DPP 1973 in this case, the judge decided using the practice statement that a duty of care could be owed to child trespassers which led to hairsplitting. 
• Use of the practice statement in criminal cases

  .First ever criminal use - This was used 20 years after it was issued in the case of R V Shivpuri 1986 where the defendant thought she was carrying drugs through the airport but it was ground leaves. The judge decided you can commit an impossible crime. This case departed from Anderton V Ryan 1985 where the defendant thought she brought a stolen tape recorder as it was very cheap. The judge decided you cannot commit an impossible crime. 
• Use of the practice statement in criminal cases

  .Direction to use Personal statement - C V DPP (Lord Lowry) this case lowered the age of criminal responsibility to 10.
• Use of the practice statement in criminal cases

  . The four directions to use the practice statement are : 

  • Social concern
  • Parliament refused to legislate. E.g. assisted suicide is a topic judges cannot change the law on using the practice statement 
  • Bring certainty to the law
  • Fundamental principles
• Court of Appeal 4 expectations

  .This is when the court of appeal can change from previous procedures

  .Lord Denning tried in Davis V Johnson to give the court of appeal their own practice statement but was reprimanded for this.

  -The court of appeal is bound by the decisions of the Supreme court or HOuse of Lords as it was, but it is also bound by its own previous decisions EXCEPT in the limited circumstances laid down in Young V Bristol Aeroplane Co 1944
• Court of Appeal 4 expectations

  Civil division :

  1. Where there are two conflicting previous decisions. When a third similar comes across, the judge can decide which division to follow
  2. Where a previous decision has been overturned  by a later supreme court decision
  3. Where the previous decision was ‘per incuriam’ (wrongly decided)

  .Criminal division : 

  1. Where, in the previous case, the law was misapplied/misunderstood resulting in a conviction. 

  .Its more important to have certainty in criminal law than in civil law.