Explain and Illustrate, the Operation of the Doctrine of Judicial Precedent and Discuss how far Judges are Bound by Decisions in Previous Cases.

Rebecca Allott (AS) Level Law Assignment

Explain and Illustrate, the Operation of the Doctrine of Judicial Precedent and Discuss how far Judges are Bound by Decisions in Previous Cases

One of the fundamental characteristics of the British Legal System is that of Judicial Precedent. The rules dictate that in certain circumstances a decision be followed whether the second court approves of the precedent or not. In more simple terms, this means when a judge must follow any decision a higher court has made about a case with similar facts.

The judgement of a court can be divided into two. Each part as a Latin name; the ratio decidendi and the obiter dicta (which is explained later). Ratio decidendi translates as “the reason for the decision”. A definition of the ratio decidendi is one by Professor Cross, which is: “Any rule of law treated by the judge as a necessary step in reaching his conclusion”. So, the ratio of a case is the rule of law, which dictated the outcome of the case. In Donoghue v. Stevenson, the claimant suffered through finding the remnants of a decomposed snail in her ginger beer. She sued the manufacturer. It was held that he owed his consumers a duty to take care. The claimant won on this point of law.

The basics of Judicial Precedent are best illustrated in the case of Re Schweppes Ltd’s Agreement (1965). Here the court of Appeal, with Willmer L.J. dissenting, ordered discovery of documents in a case involving restrictive trade practices. On the same day the same three judges gave judgement in a second case involving the same point-Re Automatic Telephone and Electric Co Ltd’s Agreement (1965). Judgement in the second case was delivered by Lord Justice Willmer who said: “If the matter was res integra, I should have been disposed to discuss the appeal in this case for the same reasons as those which I gave in my judgement in the previous case. This means that the appeal in the present case should be allowed”. The second decision was therefore unanimous. To summarise this even further, the doctrine of binding precedent is called “Stare decesis et non quieta movere”, which means stand by what as been decided and do not unsettle the established. This means a decision made in one case is binding on all following cases of similar fact in lower courts.

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All parts of the judgement, which do not form part of the ratio decidendi of the case, are called obiter dicta this is Latin for “things said by the way”. None of the obiter dicta form part of the case law though judges in later cases maybe influenced by it, and this is said to be persuasive precedent. However, the essential ingredient of Judicial Precedent is that of the hierarchy of courts and rules, which indicate the inter-relationship between the different courts.

The Europeon Court of Justice is a relatively new court within our judicial system. Its main ...

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The Europeon Court of Justice is a relatively new court within our judicial system. Its main function is to act as having the last word on matters regarding that of community law. An example, of a case going to this court was that of Diane Pretty. Here, Diane Pretty wanted the right for her husband to kill her as she had an incurable motor neurone disease, which gave her no quality of life. The Europeon Court, in this instance, refused her the right to die by euthanasia. However, Diane Pretty, herself, died soon after she herd the courts decision. The Europeon Court, appears not to be bound by its own decisions.

Apart from matters of community law, the House of Lords is the final court of appeal, within the English Legal System. The House of Lords binds all lower courts and at one point was also bound by its own decisions. This was changed in 1966, when the Lord Chancellor issued a Practice Statement, which said that the House of Lords was no longer to be bound by its previous decisions. An example of the House of Lords overruling its previous decision was in the case of R v R (1991). Here it was decided that rape within a marriage was a crime. This resulted in overturning a legal principle that had stood for centuries. The power to overrule has been used sparingly, since 1966. So, much, so if one party wishes to ask the house to exercise this power it must state so clearly in the documents of the case (Procedure Direction (1971)).

The Court of Appeal is always bound by the decisions of the House of Lords and is, generally, bound by its own decisions. The court is split into the civil and criminal division. The civil division can only depart from its own decisions in the three instances set out in 1944 by then Master of the Rolls, Lord Greene in (Young v. Bristol Aeroplane Co Ltd (1944)). He said that:

The court is entitled and bound to decide which of two conflicting decisions of its own it will follow
The court is bound to refuse to follow a decision of its own which conflicts with a House of Lords decision
The court is not bound to follow a decision of its own which was taken (per incuriam) e.g. in ignorance of relevant authority such as an Act or previous decision.

In the criminal division it is thought that because it deals with matters, which could seriously affect the individual concerned, that a less rigid approach must be taken. An example would be R v. Gould (1968), where the earlier decision in R v. Wheat and Stocks (1921) was overruled. These cases were concerned with whether a reasonable belief that a previous marriage had been dissolved is defence to a bigamy charge. From the later case it appears that it is.

Where cases are tried at first instance the decisions do not bind other High Court judges. The divisional courts do follow their own rulings except, sometimes in the Queens Bench Division. However, the High Court is bound by the Court of Appeal and the House of Lords.

The Crown Court, County Court and Magistrates Court have no precedent set by their own decisions and all the courts above them are binding.

Judicial precedent works in many different ways. When a judge is faced with a case on which there appears to be relevant earlier decisions, either by the court (if bound by its self) or a higher one. It can be said that judges either follow the rules of precedent or uses some of the ways below to avoid it.

Follow: If the cases details are similar to the precedent set by the earlier case, then the decision is made regarding the outcome of the earlier case.
Distinguish: Here, the judge does not have to follow the earlier case if he believes the facts of the case before him are very different. In this situation he distinguishes the two cases and need not follow the earlier one. An example of this occurring is R v. Brown and R v. Wilson. In R v. Brown judges argued that sadomasochism was an unlawful assault and the defendants could not use consent. However, in R v. Wilson the judges argued that the wife gave consent and initiated the buttock branding by her husband e.g. it was her idea. This resulted in the courts distinguishing between the two cases.
Overrule: This occurs when a higher court overrules an earlier case by a lower court. The House of Lords can also use its power under the Practice Statement to overrule a past decision. Here, again you can use the case of R v. R. As explained earlier the House of Lords abolished that rule made by themselves due to the 1966 practice direction.
Reversing: This is where a court higher up the hierarchy overturns the decision of a lower court on appeal of the same case. When a decision is reversed it must be highlighted that the higher court is usually overruling the lower courts statement of law.

At this point, it is important to point out that in order for Judicial Precedent to work in any of the above ways, the accuracy of law reporting in the higher courts must be of paramount importance. The fundamentals of law reporting are that in order for a court to follow a past decision there must be an accurate record of what those decisions were. The earliest reports date back to the 13th century and were then called Year Books. There were further developments throughout the century; a landmark being in 1865 when the Incorporated Council of Law was set up. Many of these old reports, from years gone bye still exists today and are published according to the court the case took place in.

Like, very much all systems which deal with a variety of complex rulings; the doctrine of judicial precedent has its disadvantages and advantages. They are as follows:

Judicial Precedent gives people a degree of certainty. For example, where a point has been settled lawyers are then able to advise their clients accordingly. A counter argument to this is the rigidity. This is typical of a system, which is open only to an annex; a bad decision taken at a high level could remain for years. Another, advantage is that Judicial Precedent has a good possibility of growth, which is provided by the system having been, as it were, opened at the apex in 1966. However, how can growth occur when judges do all they can to avoid binding precedent by seizing upon some artificial distinction between the case before them and the precedent they are faced with? Judicial Precedent brings with it a wealth of real life situations, which have actually occurred, in which to base present rulings on. This in itself is better than having to rely on hypothetical statutes. However, you have to take into consideration the amount of bulk and complexity this type of law making brings with it. This therefore makes law making very difficult and expensive to discover.

Conclusion

My opinion on the situation of Judicial Precedent is that you cannot blame this point of law on its own, for the law making system being indecisive and rigid. In doing this you have to weigh up the pros and cons of judges been able to avoid precedent. I feel that old laws should be changed to suit the times. For example, in Herrington v. BRB a child was badly injured on a train track (Electrocuted) and the judges held that even though the child was trespassing BRB owed a duty of care to the child. Also, in the courts of appeal where a person’s freedom is at stake; the judges should be able to use methods to change the law in order to save the individual from prison. However, in this situation you have to look at the other side of the argument. For instance, the people do not elect judges so it should only be fair that the government, which is elected by the people, makes the law. This is called Parliament Sovereignty. Also, judges are only concerned with the one individual/defendant in their case and are not worried at how their decisions could be massively effective on everyone else.