Lesson Objective:
To revise some, and
become familiar with other,
necessary terminology for
judicial precedent
What is judicial precedent?
Judicial precedent is the system
whereby judges create laws for future
judges to follow
What is stare decisis in full
and what does it mean?
Stare decisis et non quieta movere:
stand by what has been decided and do
not unsettle the established
It exists to provide fairness and certainty
in the law
What does a judgment
contain?
The judgment is a speech made by the
judge giving:
A summary of the facts
A review of the legal arguments
The reason(s) for the decision: the
principles of law used
The decision itself
What does ratio decidendi
mean?
Reason for the decision: ratio for short
Sir Rupert Cross: Any rule expressly or
impliedly treated by the judge as a
necessary step in reaching his
conclusion
It is the ratio that creates/is the
precedent for judges in the future to
follow
What does obiter dictum (pl.
obiter dicta) mean?
Other things said/things said by the
way: obiter for short
Two examples are:
1. Speculation – Howe: duress is no
defence to attempted murder (as well
as murder, which was the actual
decision in the case)
2. Hypothetical situations – Hill v Baxter:
examples of automatism
How does an obiter differ from
a ratio?
It does not form binding precedent
But the ratio does form binding
precedent. Therefore it is important to
separate one from the other
However, the judge delivers the
judgment in continuous prose, which
makes this difficult
How many judges in a court of
first instance?
One
How many in an appellate
court?
Divisional Court - 3
Court of Appeal - 3 or 5
House of Lords - 5 or 7 or even 9
Why does this pose a problem
for lawyers?
The more judges, the more potential
judgments – so the ratio is even more
difficult to find
In appellate courts a majority verdict is
acceptable – so then there will be a
dissenting judgment – or even more
than one. That makes the ratio still
more difficult to find
What is original precedent?
A point in an area of law that has never
been decided before, so there are no
past cases on which the judge can base
their decision
What does the judge then do?
The judge looks at cases which are the
closest in principle and if they are close
enough uses similar rules
This is reasoning by analogy
How are the two views of what
a judge does described?
1. Judges do not create law: they merely
declare what it has always been
2. Law changes over time so a judge
really does have a law-making role
Hunter v Canary Wharf (1995)
With what was the interference with TV
broadcasts said to be analagous?
Prospect, i.e. view from a house
(Aldred’s Case (1611))
On your worksheet/in your notes you
should have shown how similar/different
prospect and TV reception are
Did Hunter et al win?
No. The analogy was good (Pill LJ), and
as there is no action for loss of prospect
then neither should there be for loss of
TV reception
What is a binding precedent?
A precedent from an earlier case which
must be followed
Even if the judge in the later case does
not agree with it
But the facts in the later case must be
sufficiently similar to those in the earlier
case
And the earlier case must have been
decided by a court which was
senior/superior to or possibly at the
same level as the later court
What is persuasive
precedent?
Precedent that is not binding
Five sources with examples from criminal
law:
Courts lower in the hierarchy: R v R
Decisions by the PC: Thabo Meli
Statements obiter: Howe -> Gotts
Dissenting judgements
Decisions from other countries: US v Kirby;
Re S
How might a precedent NOT
be followed?
Distinguishing – if the facts of the later case
are sufficiently different from those of the
earlier one. Merritt v Merritt was
distinguished from Balfour v Balfour
Overruling – if the court feels the legal rule in
an earlier case is wrong. Shivpuri overruled
Anderton v Ryan
Reversing – if on appeal a higher court feels
that a lower court has made the wrong
decision; this is in the same case of course