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Introduction |
Judges must not be seen to be usurping powers of Parliament.
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Judicial precedent means |
Where judges follow previously decided cases.
The decided case itself—a 'precedent' the report of the case, the Law Report is also called a precedent.
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The operation of
judicial precedent allows for development of the law. But the basic
purpose of the rule of law is to provide
1. uniformity,
2. consistency and
3. certainty |
The
principles should not, however, be regarded as so rigid that
they cannot develop in order to meet contemporary needs.
One
of the earliest statements on the rationale underpinning this
doctrine was made by Parke J (Mirehouse v Rennell (1833)) when
he stated:
"Our common-law system consists in the applying to new
combinations of circumstances those rules of law which we
derive from legal principles and judicial precedent; and for
the sake of attaining uniformity, consistency and certainty,
we must apply those rules, where they are not plainly
unreasonable and inconvenient, to all cases which arise;
and we are not at liberty to reject them, and to abandon all
analogy to them, in those to which they have not been
judicially applied, because we think that the rules are not as
convenient and reasonable as we ourselves could have devised."
(emphasis added by the Court of Appeal in
R v Simpson (2003))3
All ER 531;EWCA Crim 1499
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Binding precedents |
A binding precedent is a decided case, which a court must follow.
Only binding if the legal principle involved is the same and the facts are similar.
A later court can circumvent an inconvenient precedent, which would otherwise be binding, by distinguishing it on the facts or on the legal principle involved.
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Stare rationibus decidendis |
stare rationibus decidendis, = keep to the decisions of past cases
Stare Decisis...Ratio Decidendi
Standing of the Decision...Reason for the Decision.
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Ratio decidendi |
The only binding part is the ratio decidendi.
Obiter dicta is other comments made by the court ‘things by the way’ and do not always form part of a ratio
decidendi
Cases are not binding on questions of fact.
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Persuasive precedents |
Is one which is not absolutely binding on a court but which may be applied e.g.
Decisions of courts lower in the hierarchy, so the House of Lords may follow a Court of Appeal decision, and the Court of Appeal may follow a High Court decision.
Decisions of the Privy Council are not strictly speaking binding but are
persuasive (but note can be followed using the rule of
James and
Karimi. In this case the Court of Appeal preferred a
later Privy Council case to a House of Lords decision relating to the law of
provocation in murder.
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Obiter dicta |
Rondel v Worsley [1969] after seven days of legal argument and the citation of 92 cases, the court held unanimously that a barrister is not liable in tort for the negligent presentation of a case in court and the preliminary work connected therewith, such as the drawing of pleadings.
Four of their Lordships said, obiter, that a solicitor acting as an advocate was entitled to the same immunity, three of their Lordships said, obiter, that a barrister would not be immune from an action in negligence in relation to matters unconnected with cases in court and the preliminary work connected therewith.
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The weight of persuasive precedents |
The weight to be attached to any individual persuasive precedent will depend for example on the rank of the court in the hierarchy, the prestige of the
judge(s) involved, the date of the case, whether judgment was reserved or given ex tempore, whether there was any dissenting opinion, whether the case was contested and whether the point in question was argued or merely conceded by counsel.
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Obiter taking on the force of
ratio
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A good example of a highly influential dictum is the statement of Lord Atkin in
Donoghue v Stevenson [1932] where he attempted to lay down a general test for determining when a duty of care arises in the tort of negligence. His dictum has become known as the 'neighbour test' and was expressed in these words:
"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be—persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."
This dictum, though clearly obiter, has been adopted in subsequent cases, for example
The Dorset Yacht case.
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Old cases |
If the
case is old, it has stood the test of time and now represents well-settled law.
Alternatively, is now out of touch with changed conditions. If the case is
recent, observers hail it as the most up-to-date pronouncement on the matter.
Alternatively, it can be attacked as being of insufficient antiquity.
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Ex tempore |
A considered judgment delivered after being reserved will usually carry more weight than one delivered ex tempore 'off the cuff' at the conclusion of counsel's argument.
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Cuna advisari volt |
The law reports signify a reserved judgment by the words cuna advisari volt ('the court wishes to consider the matter'). Often abbreviated to cur. adv. volt or C.A.E
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House of Lords are always reserved |
Although sometimes the House of Lords announce the actual decision at the end of
counsel's argument - without giving their reasons at that time - their opinions
are always reserved.
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Significance of dissenting judgments |
Weight given to a persuasive precedent will be reduced if any dissenting opinion was given in the case and, in particular, by a judge whose views command the highest respect.
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Unargued cases |
Persuasiveness is also affected if the case was not contested or if the judge decided the point in issue after being conceded by counsel. Such a case has not been subjected to the close scrutiny and refining process associated with skilled legal argument.
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Original precedent, and obiter; a worked
example |
In
DPP v Smith [2006] QBD
the defendant went to the
home of his ex-partner and cut of her pony tail with kitchen scissors. The
magistrates accepted that there was no actual bodily harm; the DPP appealed to
the Queen's Bench Division.
There was no precedent on this type of
assault, so the QBD created one:
Held: Cutting off a person’s hair amounted to ABH. Harm was not limited to
injury to the skin, flesh and bones and extended to hurt and damage. That the
hair cut was "dead tissue" was not relevant.
They then went further and said something
that they were not asked about, but they thought was relevant:
Obiter: If paint or some other unpleasant substance
were to be put on a victim’s hair that would to could amount to actual bodily
harm.
Smith was found guilty of ABH.
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