The obiter dicta (things said by the way) though not binding can still be used as persuasive precedent and so a judges influence can extend beyond that provided by the rules of precedent.
Apart from the Obiter dicta there are other forms of persuasive precedent which although are not binding can still have an impact on the decisions of judges e.g. decisions of courts lower in the hierarchy. An example of this is in RvR (marital rape) where the HoL followed a decision made by the Court of Appeal and effectively created a new crime deciding that rape could be committed in marriage.
The court hierarchy plays a big part in deciding which decisions have more weight. Though the rules of precedent are applied rigidly and don’t appear to allow scope for creativity, there are ways in which the doctrine of precedent can be avoided ‘thus allowing judges to create new law.
There are four main ways in which courts can avoid precedent:
- The HoL use of the practice statement
The 1966 Practice Statement allows the HoL to change the law if they believe that an earlier case was wrongly decided. They have the flexibility to refuse to follow an earlier case “when it appears right to do so”, thus extending the power of the Law Lords (at least in theory) to create law. Though it is not used often it can have a major effect throughout the legal system e.g. when Gemmel and Richards overruled Caldwell to make subjective recklessness the only acceptable recklessness in English Law.
- The exceptions in Young’s Case for the Court of Appeal
The court of Appeal is normally bound by its own previous decisions. This rule comes from the case of Young v Bristol Aeroplane Co. Ltd. But that case did allow for 3 exceptions where the Court of Appeal need not follow it’s own past decisions. Where:
- There are conflicting decisions in past Court of Appeal cases, the court can choose which one it will follow and which one it will reject
- There is a decision of the HoL which effectively overrules a Court of Appeal decision; the court of appeal must follow the decision of the HoL.
- The decision was made per incurium ie carelessly or by mistake because a relevant act of Parliament or other regulation has not been considered by the court
The first two exceptions do not give the Court of Appeal any power to change or create law; it is only the last exception (per incuriam) that gives a very small degree of flexibility to correct errors.
- The extra exception for the Court of Appeal(criminal division)
The criminal division as well as using the exceptions from Young’s case can also refuse to follow a past decision of its own if the law has been ‘misapplied’ or ‘misunderstood’. This exception is not often used but it does give the court of appeal the power to alter law when it is necessary.
- Distinguishing (which can be used by all courts)
This is a method which can be used by a judge to avoid following a past decision which he would otherwise have to follow. It means that the judge finds that the material facts of the case he is deciding sufficiently different for him to draw a distinction between the present case and the previous precedent. He is then not bound by the previous case. This way of changing precedent can be used by a judge in at any level of court.
- Original Precedent – in addition to the four ways mentioned above, the courts will on some occasions have to create new law when deciding a case on an area of law for which no law exists. a court may come across an original case that highlights a point of law that has not been discussed before.
When an original case comes before a judged he may have to interpret the statute and create new precedent . In statutory interpretation the judge s are being asked to decide the meanings of an act of Parliament. There are a number of conflicting views on the role of judges in this area.
Some follow the Literal Rule which states the words must be given their plain, ordinary, grammatical meaning. This can mean using the literal meaning of the words even if the result is not sensible.
But the judges recognise that on some occasions other methods of interpreting the words were needed. The golden rule is a modification of the literal rule. if the literal rule leads to an absurd result or repugnant result, or even if there is some ambiguous wording in the act. In the narrow application of the golden rule the courts may only choose between the possible meanings of a word or phrase. (R v Allen- Bigamy case). Or in the wider application of the golden rule it is used when the words have only have one clear meaning but that would lead to an absurd result. In these cases the courts will use the rule to modify the wording of the statute (Re Sigsworth-inheriting money from the mother he killed).
The mischief rule gives a judge much more discretion than the golden rule. When using this rule the judge should look to see what the law was before the act was passed in order to discover what gap or “mischief” the act was intended to cover. The court should then interpret the act so the gap is covered (Smith v Hughes prostitutes soliciting from a window)
A more recent form of statutory interpretation is the purposive approach. This goes beyond the mischief approach as it is not just looking to see what the gap was in the law, the judges actually decide what they believe parliament intended by the act. This gives the judges the most opportunity to create law and perhaps even distort what parliament intended. However when making statutes Parliament may base proposed statutes on hypothetical situations and it is not possible for parliament to predict every possible future situation that could arise. And so it may be necessary for a judge to interpret a statute so it can be applied to those unforeseen situations.
Judges do however argue that in using these methods of avoiding precedent or interpreting statutes they are not making law; they are merely developing the law which already exists.
As Parliament is the elected law making body in the country it would be undemocratic to allow judges to have too great an influence in law making. For this reason precedent is subordinate to statute law and delegated law and delegated legislation. Therefore if an act of parliament is passed that contradicts a previously decided case, then the case decision will cease to have effect.
This happened when Parliament passed the Law Reform 9year and a day rule) Act in 1996. Up until that point judicial decisions had meant that a person could only be charged with murder or manslaughter if the victim died within one year and one day of receiving the injuries. The act enacted that there was no time limit and a person could be guilty even if the victim died several years later. So now cases after 1996 follow the act and not the old judicial decisions.
Compared to parliament, judges are very limited in the amount of law which they can create. They can only create or change law when a suitable case is taken to court. Even then they can only change the law on the point of law raised by the case they are hearing. This limits their law making potential. Even when they do have an opportunity to change the law, they will never have the choice to tackle all the problems that are known to exist in the law. This wouldn’t be a problem if parliament was more active in reforming the law, but parliament has been very reluctant to change the law even though there is great need for the law to be reformed. This is particularly true of the criminal law where a draft criminal code was proposed but parliament has never enacted it.
The Human Rights Act 1998 has some effect on both judicial precedent and statutory interpretation where human rights are an issue in the case. For precedent this is because s2 of the act requires judges at all levels of the court system to take into account judgements of the European Court of Human Rights.
For statutory interpretation s3 of the act requires that legislation be interpreted so far as it is possible in a way which is compatible with the rights in The European Convention of Human Rights.