JUDICIAL PRECEDENT (Part 1)

INTRODUCTION
Judicial precedent means the process whereby judges follow previously
decided cases where the facts are of sufficient similarity. The doctrine of
judicial precedent involves an application of the principle of stare decisis ie,
to stand by the decided. In practice, this means that inferior courts are
bound to apply the legal principles set down by superior courts in earlier
cases. This provides consistency and predictability in the law.

RATIO DECIDENDI AND OBITER DICTUM

The decision or judgement of a judge may fall into two parts: the ratio
decidendi (reason for the decision) and obiter dictum (something said by the
way).

 RATIO DECIDENDI – The ratio decidendi of a case is the principle of

law on which a decision is based. When a judge delivers judgement in
a case he outlines the facts which he finds have been proved on the
evidence. Then he applies the law to those facts and arrives at a
decision, for which he gives the reason (ratio decidendi).
 OBITER DICTUM – The judge may go on to speculate about what his
decision would or might have been if the facts of the case had been
different. This is an obiter dictum.

The binding part of a judicial decision is the ratio decidendi. An obiter

dictum is not binding in later cases because it was not strictly relevant to
the matter in issue in the original case. However, an obiter dictum may be
of persuasive (as opposed to binding) authority in later cases.

A difficulty arises in that, although the judge will give reasons for his
decision, he will not always say what the ratio decidendi is, and it is then up
to a later judge to “elicit” the ratio of the case. There may, however, be
disagreement over what the ratio is and there may be more than one ratio.

PERSUASIVE PRECEDENT
This is a precedent that is not binding on the court, but the judge may
consider it and decide that it is a correct principle, so he is persuaded that
he should follow it.

Persuasive precedent comes from a number of sources:

1. Courts lower in the hierarchy
 Such as example can be seen in R v R (1991).
The House of Lords agreed with and followed the same
reasoning as the Court of Appeal in deciding that a man could
be guilty of raping his wife.

2. Decisions of the Judicial Committee of the Privy Council

 Her Majesty’s Most Honourable Privy Council, usually known simply
as the Privy Council, is a formal body of advisers to the Sovereign of
the United Kingdom. Its membership mainly comprises senior
politicians, who are present or former members of either the House of
Commons or the House of Lords.
 This court is not part of the court hierarchy in England and Wales and
so its decisions are not binding, but, since many of its judges are also
members of the Supreme Court, their judgments are treated with
respect and may often be followed.
 Wagon Mound (No 1)-An example of this can be seen in the law
on remoteness of damages in the law of tort and the decision
made by the Privy Council in this case. In later cases courts in
England and Wales followed the decision in this case.
 This also happened in A-G for Jersey v Holley. The majority of the
Privy Council (6 out of 9 judges) ruled that in defence of provocation,
a defendant is to be judged by the standard of a person having
ordinary powers of self-control. This was a conflicting decision against
the House of Lords. Although a decision by the Privy Council is not
binding on English courts, the Court of Appeal (5 members) followed
Holley for three other cases, and confirmed that the decision should
be followed by courts in England and Wales.3.

3. Obiter dicta statements

 The remainder of the judgement that is not the ratio decidendi is
called obiter dicta (‘other things said’) and judges in future cases do
not have to follow it. Sometimes a judge will speculate on what his
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, as
with all obiter statements, it is not binding precedent.
 R v Hone-The Lords commented, as an obiter statement, that
duress would not be available as a defence to someone charged
 with attempted murder. Duress is usually a defence against
criminal charges. If a thief was forced to steal, they can use
‘duress’ as a reason to defend themselves – that they were
forced to steal, so they are not that guilty as charged. But the
Lords, as mentioned above, ruled that even if a murderer, or
attempted murderer, was forced to kill someone, the murderer
is still guilty – where ‘duress’ will not be available as defence.
Later in R v Gotts, a defendant charged with attempted murder
could not use the defence of duress, due to the obiter statement from
Howe, which was followed as persuasive precedent by the Court of
Appeal.

A major problem when looking at a past judgment is to

divide the ratio decidendi from the obiter dicta, as the
judgement is usually in a continuous form, without any
headings specifying what is meant to be part of the ratio
decidendi and what is not.

4. A dissenting judgment
 Where a case has been decided by a majority of judges, the judge who
disagreed will have explained his reasons. If that case, or a similar
case, goes on appeal to the Supreme Court, it is possible that the
Supreme Court may prefer the dissenting judgment and decide the
case in the same way. The dissenting judgment has persuaded them to
follow it.

5. Decisions of courts in other countries

This is especially so where the other country uses the same ideas of
common law as in our system. This applies to Commonwealth countries
such as Canada, Australia and New Zealand. The weight to be attached to
any individual persuasive precedent will depend on several factors:

 Rank of the court in the hierarchy Prestige of the judges involved Date
of the case
 Whether the judgment was reserved or given ex tempore. When a
decision is being delivered ‘ex tempore’ is when a judge hands down a
decision in a case soon or straight after hearing it. If the judgment
was reserved, it means that a judge does not give his decision and he
will deliver it later in written form.
 Whether there was any dissenting opinion
 Whether the case was contested
  Whether the point in question was argued or merely conceded by
counsel

 Now we know that there is a method of extracting the binding legal

principle, the ratio decidendi, from a case we need to examine how the
courts interact with each other. To allow the doctrine of judicial precedent
to function, a court hierarchy was developed. In order to understand how
stare decisis works, some important points should be remembered:
 Superior courts bind lower courts. The lower courts have to follow the
decisions of the higher courts. Lower courts never bind higher courts
(although decisions can be persuasive).
 The rules governing whether or not a court binds itself are specific to each
court. They will be discussed later.
 Stare decisis is applied more strictly in civil rather than criminal cases.

The Court Hierarchy

 This is a simplified diagram of the court system which highlights how the
system of precedent operates. The points relating to whether a court binds
itself will be discussed in greater detail below.
HOUSE OF LORDS:

 The main debate about the Supreme Court (and previously the House
of Lords) is the extent to which it should follow its own past decisions,
and the ideas on this have changed over the years. Originally the view
was that the House of Lords had the right to overrule past decisions,
but gradually during the 19th century this more flexible approach
disappeared. By the end of that century, in London Street
Tramways v London County Council (1898), the House of Lords
held that certainty in the law was more important than the possibility
 of individual hardship being caused through having to follow a past
decision.
 So from 1898 to 1966 the House of Lords regarded itself as being
completely bound by its own past decisions unless the decision had
been made per incuriam, that is ‘in error’. However, this idea of
error referred only to situations where a decision had been
made without considering the effect of a relevant statute.
 This was not felt to be satisfactory, as the law could not alter to meet
changing social conditions and opinions, nor could any possible
‘wrong’ decisions be changed by the courts. If there was an
unsatisfactory decision by the House of Lords, then the only way it
could be changed was by Parliament passing a new Act of Parliament.
 This happened in the law about intention as an element of a criminal
offence. The House of Lords in DPP v Smith (1961) had ruled that an
accused could be guilty of murder if a reasonable person would have
foreseen that death or very serious injury might result from the
accused’s actions. This decision was criticised as it meant that the
defendant could be guilty even if he had not intended to cause death
or serious injury, nor even realised that his actions might have that
effect. Eventually Parliament changed the law by passing the Criminal
Justice Act 1967.

The Practice Statement.

 It was realised that the final court of appeal (then the House of Lords)
should have more flexibility. For today’s system of judicial precedent
the critical date is 1966, when the Lord Chancellor issued a Practice
Statement announcing a change to the rule in London Street
Tramways v London County Council.
 The Practice Statement said: ‘Their Lordships regard the use of
precedent as an indispensable foundation upon which to decide
what is the law and its application to individual cases. It
provides at least some degree of certainty upon which
individuals can rely in the conduct of their affairs, as well as a
basis for orderly development of legal rules. Their Lordships
nevertheless recognise that the rigid adherence to precedent
may lead to injustice in a particular case and also unduly
restrict the proper development of the law. They propose,
therefore, to modify their present practice and while treating
former decisions of this House as normally binding, to depart
from a previous decision when it appears right to do so. ‘In this
 connection they will bear in mind the danger of disturbing
retrospectively the basis on which contracts, settlement of
property and fiscal arrangements have been entered into and
also the especial need for certainty as to the criminal law. This
announcement is not intended to affect the use of precedent
elsewhere than in this House.’
 From 1966, this Practice Statement allowed the House of Lords to
change the law when it believed that an earlier case was wrongly
decided. It had the flexibility to refuse to follow an earlier case
when ‘it appeared right to do so’.
 This phrase is, of course, very vague and gave little guidance as to
when the House of Lords might overrule a previous decision. In fact,
the House of Lords was reluctant to use this power, especially in the
first few years after 1966.
 The first case in which the Practice Statement was used was Conway
v Rimmer (1968), but this involved only a technical point on discovery
of documents.
 The first major use did not occur until 1972 in Herrington v British
Railways Board (1972), which involved the law on 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. In Herrington the Lords held that social and
physical conditions had changed since 1929, and the law should also
change.
 There continued to be great reluctance in the House of Lords to use
the Practice Statement, as can be seen by the case of Jones v
Secretary of State for Social Services (1972). This case involved the
interpretation of the National Insurance (Industrial Injuries) Act 1946
and four out of the seven judges hearing the case regarded the earlier
decision in Re Dowling (1967) as being wrong. Despite this the Lords
refused to overrule that earlier case, preferring to keep to the idea
that certainty was the most important feature of precedent.
 The same attitude was shown in Knuller v DPP (1973) when Lord Reid
said: ‘Our change of practice in no longer regarding previous
decisions of this House as absolutely binding does not mean
that whenever we think a previous precedent was wrong we
should reverse it. In the general interest of certainty in the law
we must be sure that there is some very good reason before we
so act.’
 From the mid-1970s onwards the House of Lords showed a little more
willingness to make use of the Practice Statement. For example, in
Miliangos v George Frank (Textiles) Ltd (1976) the House of Lords
used the Practice Statement to overrule a previous judgment that
damages could be awarded only in sterling.
 More recently in Murphy v Brentwood District Council (1990), the
House of Lords overruled the decision in Anns v Merton London
Borough (1977) regarding the test for negligence in the law of tort.
Another major case was Pepper v Hart (1993) where the previous ban
on the use of Hansard in statutory interpretation was overruled.
 In Horton v Sadler and another (2006) the House of Lords used the
Practice Statement to depart from a previous decision of its own. The
case involved a personal injury claim, but the point of law being
decided was about the power to allow service out of time under s 33
of the Limitation Act 1980. The House of Lords departed from their
decision in Walkley v Precision Forgings Ltd (1979).
 The Law Lords departed from Walkley for three reasons:
o It unfairly deprived claimants of a right that Parliament had
intended them to have.
o It had driven the Court of Appeal to draw distinctions which
were correct but were so fine as to reflect no credit on the area
of law.
o It went against the clear intention of Parliament.
 Lord Bingham in his speech considered the issue of departing from a
previous decision. He pointed out that the case was not one in which
contracts, settlements of property or fiscal arrangements had been
entered into, nor did it involve the criminal law where certainty was
particularly important. Also, there would not be any detriment to
public administration caused by departing from the previous decision.
 The Practice Statement stressed that criminal law needs to be certain,
so it was not surprising that the House of Lords did not rush to
overrule any judgments in criminal cases. The first use in a criminal
case was in R v Shivpuri (1986) which overruled the decision in
Anderton v Ryan (1985) on attempts to do the impossible. The
interesting point was that the decision in Anderton had been made
less than a year before, but it had been severely criticised by
academic lawyers. In Shivpuri Lord Bridge said: ‘I am undeterred
by the consideration that the decision in Anderton v Ryan was
so recent. The Practice Statement is an effective abandonment
of our pretention to infallibility. If a serious error embodied in
 a decision of this House has distorted the law, the sooner it is
corrected the better.’
 In other words, the House of Lords recognised that they might
sometimes make errors and the most important thing then was to put
the law right. Where the Practice Statement is used to overrule a
previous decision, that past case is then effectively ignored. The law is
now that which is set out in the new case.
 Another important case on the use of the Practice Statement was R v
R and G (2003). In this case the House of Lords used the Practice
Statement to overrule the earlier decision of Caldwell (1982) on the
law of criminal damage. In Caldwell the House of Lords had ruled that
recklessness included the situation where the defendant had
not realised the risk of his actions causing damage, but an
ordinary careful person would have realised there was a risk. In
R v R and G it was held that this was the wrong test to use. The Law
Lords overruled Caldwell and held that a defendant is only reckless if
he realises that there is a risk of damage and goes ahead and takes
that risk. This case showed the House of Lords as being prepared to
use the Practice Statement where they thought it ‘right to do so’.
 When the Supreme Court replaced the House of Lords in October
2009, the Constitutional Reform Act 2005 transferred the House of
Lords’ powers to the Supreme Court. However, initially it was not
clear if this included the Practice Statement. In Austin v London
Borough of Southwark (2010), which was about tenancy law, the
Supreme Court confirmed that the power to use the Practice
Statement had been transferred to it. However, the court did not use
the Practice Statement in Austin to depart from an earlier decision.
The court took the view that certainty in tenancy law was important
and they quoted from the judgment in Knuller (Publishing, Printing
and Promotions) Ltd v DPP (1973) Where it was said that: ‘In the
general interest of certainty in the law we must be sure that there is
some very good reason [to depart form the previous law]’