'The scope of the flexibility of the doctrine of binding precedent has two sources; the flexibility of the basic concepts of ratio and dictum and the limited degree of self-bindingess in the High Court, the Court of Appeal and the House Of Lords.' Cr...

  From the ratio of the case there is a division into two categories, descriptive ratio and prescriptive ratio.  Descriptive ratio describes the reason for the decision and once a case has reached the stage of res judicata, the descriptive ratio has its facts and is therefore fixed and remains unchangeable.  Consequently it is to be understood that descriptive ratio is essentially inflexible and rigidity binding.  Where as prescriptive ratio is binding.  The prescriptive ratio is the interpretation which a later judge places on an earlier judgement when deciding whether or not it is binding. When formulating the prescriptive ratio of a case, the judge must identify the appropriate level of generality at which the facts of the earlier case should be viewed.

  The obiter dicta/dictum is something said by a judge while giving judgment that was not essential to the decision in the case.  It does not form part of the ratio decidendi of the case therefore not binding precedent. Although dicta can’t be binding it is sometime so persuasive that the lower court judges feel bound by it, example Donoghue v. Stevenson.

At this stage we need to analyse precisely the two concepts of dicta, which can be put into two parts; judicial dicta and gratis dicta.  Gratis dicta can be translated as being free; it has no value or persuasive force. Gratis dicta is the judges thought that has no mean as not much thought has been put in it.  Gratis dicta should not influence the flexibility of binding precedent.

Where as, judicial dictum; will have been given considerable thought by the judge.  The judicial dicta maybe so persuasive as to be practically indistinguishable from ratio. Thus this would suggest there is some flexibility.  There are some cases where a court may not be bound by the ratio but have made a decision from the judicial dictum.  An example of case of this would be Hedley Byrne & Co Ltd v Heller & Partner [1963] 2 ALL ER 575.

Not all courts will be bound by all earlier decisions on similar facts, whether or not a judge in case A is bound by the decision of case B will depend upon the position of the two courts in the hierarchical structure. The general formula is that a higher court is that a higher court will bind all lower courts; I feel it important for some knowledge of the hierarchical structure is therefore necessary to an understanding of the doctrine.  Thus I will explain the hierarchical structure one by one and state who binds whom and how flexible the binding precedent is in each case.

  At the top of the higher hierarchical structure is the House of Lords, whose decisions bound all lower courts below, but is not self-binding as a result of the Practice statement of 1966. Practice statement came about due to the fact that we live in a society that is changing and evolving everyday, thus norms and value have change with it.  Plus decisions which at the time they were made, appeared good law, but in fact regarded out dated. The practice statement enables the house of lord to change decision and not have to go through legislation.  An example case of this is R v R [1991] 4 ALL ER 481, where Lord Keith of Kinkel states that, “Hales proposition reflected the state of affairs in these respects at the time it was enunciated… I am therefore of the opinion that s1 of the 1976 cat prevents no obstacle to this house declaring that in modern times the supposed marital exception in rape forms no part of the law of England.”   This statement show that law is evolving and changing with everyday society.

  There has been clearly more flexibility since 1966, as these example case demonstrate C v DPP [1995] 2 ALL ER 43, R v .Kansal [2002] 1 ALL ER 257.  lord Reid state  an explanation of why the practice statement should only be used when absolutely necessary, in the case of  Jones v. Secretary of State for Social Services [1972] 2 WLR 210;  “ my understanding of the position when this resolution was adopted was and is that there was a combatively small number of reported decisions of this House which were generally thought to be impeding the proper development of the law or to have led to results which were unjust or contrary to public policy and that such decisions should be reconsidered as opportunities arose.  But this practice was not to be used to weaken existing certainty in the law.”

  From the statement above it is apparent that the flexibility in the House of Lords is to be used sparingly as possible to keep stable decision, and that will only be altered on some appeal if the court think t is wise too because of changing times.

Below the House of Lords is The Court of Appeal, which is divided into separate divisions; the Civil Division, and the Criminal Division.  Both divisions are of course bound by the decisions of the House of Lords and generally itself.  The decisions of each division are binding upon the High Court and all other lower courts.  Although there are exceptions when previous decisions do not set precedent this court is becoming increasingly self bound. Russell LJ, “I do not support the suggestion that this court is free to override its own decisions.  I am a firm believer in a system by which citizens and their advisers can have as much certainty as possible in ordering their own affairs.”

The court of appeal is governed by it own previous decisions, the position on the civil decision is governed by the case Young v. aeroplane Co.Ltd [1944]. The civil division is bound to its own decision except for three exceptions, which are previous decisions which conflict the court may select a new decision. The second reason is where the court of appeal decision conflicts with a House of Lords decision, the court of appeal must follow the house lord’s decision. The third reason the court of appeal may refuse to follow its own decision where it is satisfied that decision was reached per incuriam, example through mistake.

The court of appeal (criminal division) is not that different from the civil division.  However, because in criminal matter the liberty of individuals is frequently at stake, the precedent may less rigidly followed.  Where the criminal division is satisfied that the law has been misapplied or misunderstood, then it may refuse to follow a previous decision even if it does not strictly come with in the exception allowed by Young v Bristol Aeroplane Co.

The high court binds all lower courts but itself. The lower courts are the County Courts and Magistrates courts, which have no binding effect as they are the lowest court out of the hierarchy. It is not, however strictly bound by its own previous decisions, although high court judges will generally adhere to previous decisions for the sake consistency, unless there is good reason for departing from those decisions.  The reason why the high court may not be bound by high court decisions is simply because inadequacy of law reports from that court; may high court decisions remain unreported, and it would therefore be impractical for such decisions to have binding effect.

There are many advantages and disadvantages found in doctrine of binding to precedent. Firstly we should consider the advantages and how they affect the flexibility and rigidity of precedent. Many of these appear further in theory than in practice. An example of this is the way that stare decisis is in ‘force’ to ensure consistency in decisions making it possible for both defendants and plaintiff to be advised accurately on their claim. In theory then, a higher level in certainty and confidence can be gained by the public in the reliability of the law finding justice and a realistic level of advice can be obtained. In practice, however, this is not always the case. We often find conflicting decisions in a court so even though the facts maybe identical, the point of law may be interpreted in a different way. When this is the case it is generally accepted that that latest decision be followed. This is demonstrated in a quote from Lord Denning MR, in the case of Colchester Estates (Cardiff) v. Carlton Industries plc [1984] 2 All ER 601

“In this respect I follow the general rule that where there are conflicting decisions of courts co-ordinate jurisdiction, the later decisions is to be preferred if it is reached after full consideration of earlier decisions”.

From this it is visible that inflexibility can be an advantage as it avoids allowing conflicting decisions to occur. However, it is also possible that flexibly can be seen as an advantage, providing the allowance for flexibility is not abused. We find this in the Practice Statement of Lord Gardiner (1966). This simply allows the House of Lords to adjust and review laws and previously binding precedents that are regarded as outdated or no longer ‘good law’. An example of this can be found in the case of R v. R [1992] 1 AC 599, in which the law on rape allowed marital exemption, however in this case this was considered no longer good law, and so Hale’s marital exemption was extinguished on Lord Keith’s understanding that

“Hale’s proposition reflected the state of affairs in these respects at the time it was enunciated. Since then the status of women, and particularly of married women, has changed out of all recognition in various ways which are very familiar and upon which it is unnecessary to go into detail…’

This brings, therefore, an amendment to the Sexual Offences Act 1976, s1 (1).

Without this doctrine and the use of case law (the fundamental basis of the doctrine of binding precedent and stare decisis) the courts would have to decide each case individually which as we have learnt would allow much room for inconsistency but would also be a huge strain on resources as it would amount to massive costs in time and money. Therefore another advantage can be found in the rigidity the use of precedent can create.

In the viewpoint of those active in the judicial system precedent is extremely useful. In the words of Lord Macmillan

“[precedents are used as] stepping stones, not halting places”

However, although here we can find a string of advantages it is vital not to dismiss any disadvantages that may ‘crop up’ in the processes of using the doctrine of binding precedent.

The rigidity formed by using precedent and being bound by case law, as such, can also be considered a disadvantage due to the House of Lords being he only court in the hierarchy being in a position to overrule binding precedents, meaning that other

, lower courts are in no position to depart from decision they may not necessarily view as appropriate. This is a problem, not only for the reason given, but it also as so few cases actually reach the House of Lords that it shows reluctance on their part to consider the use of the Practice Statement(1966), and therefore reluctance to allow the law to evolve at the same rate as humanity. This may be due to the fact that too much use of the Practice Statement (1966) can result in uncertainty and inconsistency in the law used. Perhaps it should be considered then that this may be an influence on why so few cases ever reach the House of Lords, maybe they are trying to conserve such power to overrule until they are left with absolutely no further options, as in the previously mention case of R  v. R [1992] 1 AC 599. In the words of Lord Reid on a request for a departure from a binding precedent (Jones v. The Secretary of State for Social Services [1972] 2 WLR 210)

“My understanding of the position when this resolution was adopted was and is that there was a comparatively small number of reported decisions of this House which were generally thought to be impeding on the proper development of the law or to have led to results which were unjust or contrary to public policy and that such decisions should be considered as opportunities arose. But this practice was not to be used to weaken the existing certainty in the law.”

It can be difficult on occasion to distinguish between the ratio decidendi and the rule of law yet this is vital to setting the precedent so we notice allowance for those who object to a decision to appeal on the basis of per incuriam (through lack of care of the courts) so we see that the line distinguishing the two must be found and drawn, no matter how fine that line may be.

To conclude, therefore, we should consider all aspects of flexibility/ inflexibility and take into account how they differ and how they help or hinder the development of the law. In theory we can see that flexibility, controlled by the House of Lords, is good when it is used to the necessary degree but its consequences could be catastrophic should its use be allowed in every circumstance as the uncertainty it would place on the law and the judicial system would simply spiral out of all control. On the other hand when it comes to the law in practice is not always reasonable to judge one case based on the legal facts of another case that maybe considered out of date by the court in question but not by the House of Lords.

We should not depart from the fact that the ideology behind stare decisis and the doctrine of binding precedent has that of a positive intention that is to make the law consistent and fair.

It is also important to briefly consider other factors that may influence the scope and flexibility of the doctrine of binding precedent in order to gain the fullest understanding possible and be led to a more realistic overview. Many of the factors outside the boundaries of obiter dicta/dictum and ratio decidendi can be bound together in the category of persuasive precedents. These include; decisions of the Privy Council; decisions made on he same points of law in other common law jurisdictions (e.g. United States of America); textbooks can be used as source of law at this point, providing due consideration has been given to the author; previous decisions of other courts of the same level, when they are not already horizontally bound t follow them.

As a result of so many other factors holding influence there is a strong sense of bindingness and if the precedents are followed accordingly then the concepts of both stare decisis and the doctrine of binding precedent, and their intentions, have been successful.        

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