C hapter 3 T HE DOCTRINE OF JUDICIAL PRECEDENT

1. Chapter 3 THE DOCTRINE OF JUDICIAL PRECEDENT

2. 3.1 What is the doctrine of judicial precedent? Why precedent? • It is generally expected that there is a certain uniformity or consistency in the decisions courts make. • It would cause a great amount of doubt if cases having near identical facts are being decided differently. Every person seeking relief in a court expects the law to be predictable. • It is for this reason why courts are generally bound by their own decisions and decisions of courts ranked higher in the court structure.

3. If people can determine what the law is, there is no need to litigate. Legal advisers can advise clients with confidence about what the legal principles are that a judge would apply in deciding a dispute in court and what the outcome would be. • The rule of binding precedent is that the legal rule established in a precedent will continue to be applied in subsequent similar cases until either another court decides that the case was incorrectly decided, or for some other reason cannot be allowed to stand, or until a court higher in the hierarchy overturns the decision, or until Parliament decides to change the law by passing a new Act of Parliament that overrules or alters the rule laid down by the court.

4. Stare decisis • The old Latin phrase which judges adverted to was the principle of ‘stare et non quieta movere’ or in short, stare decisis.Stare decisis means ‘to stand by decisions and not to disturb settled matters’. • It is common to find in more recent days the principle of stare decisis being referred to as the modern day doctrine of ‘binding precedent’. • There however is a significant distinction between the two. Historically stare decisis seems to have given judges more flexibility to depart from previous decisions in similar cases. Precedent in the modern day used the looser principle of stare decisis and developed it into ‘binding precedent’ whereby judicial law making is given certainty.

5. ‘Certainty’ and ‘Flexibility’ • Binding precedent is when a court makes a decision in a case (i.e. creates a precedent) any court which is equal (horizontal) or lower (verticle) in the hierarchy of the court structure must follow the principle of law established in that previous case when a case which is similar is before it. • In our studies we will be considering the balance that has to be struck between ‘certainty’ and ‘flexibility’ in judicial law making and also the new dimension brought into precedent by the HRA. • For judicial law making to be legitimate it has to be rationally structured and coherent. The doctrine of binding precedent is what provides the base for this end to be achieved. The structure should also allow for judicial law making to be changed when necessary. That is why a certain degree of flexibility is also necessary.

6. Persuasive Precedents • Conversely, there are precedents which are not binding. Precedents which are not binding are persuasive precedents. The degree of persuasiveness will depend on various factors. For example the following types of precedents are persuasive :- • Decisions of lower courts are persuasive on higher courts and are not binding; • Decisions of the Judicial Committee of the Privy Council; • Decisions of Scottish and Northern Irish Courts; • Decisions of cases from other common law legal systems.

7. 3.2 Operation of Precedents ; ratio decidendi and obiter dictum • As discussed previously, precedent is where a case establishes a new principle of law by clarifying the operation of the rule or principle of law which is doubtful. • The doctrine of stare decisis provides the situations in which such precedents become binding on courts. • The next step is to understand how a precedent operates. A precedent operates only when two cases are sufficiently similar to the extent that the doctrine should apply.

8. It is almost impossible to find two cases which are identical in facts. Some cases are similar in facts and some differ substantially. What is relevant is to consider whether the material facts (i.e. the facts upon which the decision was reached) are sufficiently similar to illustrate the same principle. • Where the facts are sufficiently similar, the precedent will bind the case at hand. It must also be kept in mind that lawyers and judges use precedents as a source of law to give weight to their arguments or decisions on this basis. • Therefore, the need to interpret the decision in a previous case arises when you try to apply that case to the new set of facts in a case presently being heard.

9. Ratio decidendi • Ratio is the reasoning on which the decision is made. • The ratio will include the facts which are material to the case in making the decision and the prevailing law relating to the material facts and the opinion of the judge with regard to the material facts and the prevailing law. • It is possible for a judgment to have more than one ratio. It is the ratio in a case that is binding on lower courts.

10. Ratio decidendi • Although we often simply state that the ratio is the reasoning behind the decision and this reasoning should apply to cases that follow such a decision, finding the ratio in a case is often difficult. • Judgments can run into a large number of pages and the ratio in a case can be very precise and short and difficult to identify. • There are also situations where a judge following a previous decision will misconstrue or misinterpret the ratio in that previous case and give a further twist to the ratio. • A judgment does not state which part of it forms the ratio and which part of it does not. This is what makes case law extremely complex, and understanding case law is therefore a skill acquired after years of experience.

11. Ratio decidendi • Another feature of a ratio is that it is open to modification to accommodate new cases having an additional aspect in its facts. • In such circumstances the ratio becomes the basic rule or principle of law which may be modified according to the additional facts in the new case. • It is on this basis that the common law (case law) has developed over the centuries.

12. Ratio decidendi • A judge who deals with precedent may :- • Confirm and apply a ratio, • Narrow the ratio, • Widen or extend the ratio, • Reinterpret the ratio (clarify the ratio), • Modify the ratio, • Criticise the ratio, • Consider it to be obiter, • Distinguish the ratio from the case at hand.

13. Obiter dictum • Statements of law that are stated in a judgment which were not related to the facts or decision in the case is called obiter dictum. Obiter dicta (plural of obiter dictum) mean ‘things said by the way’. • These are statements of opinion on the law which are referred to which are not relevant in deciding the case at hand. • Obiter dictum is not binding on lower courts but is considered to be highly persuasive.

14. Obiter dictum • A statement made obiter in a case may later be followed and be applied as the ratio in a case. For this reason a statement said by the way in a judgment should not be under estimated. • If for example a statement made obiter that if the facts were to be different the decision would be another, the lower court in a later case may well be justified in treating such an obiter statement of the superior court to be like a ratio binding on it. • This is because the lower court has an indication that if such a case is brought up before the superior court on appeal, the superior court will decide in the manner stated obiter in the previous decision.

15. Obiter dictum • Statements may be made obiter in the following situations :- • In situations where the judge considers a hypothetical situation (if the facts are such the decision would be.....), • Where the judge states that he would have decided in one way if he was not bound by a previous decision (i.e. stare decisis), • The ratio in a minority judgment becomes an obiter as it is a line of reasoning which was not followed. In such a situation the judge pronouncing the minority judgment will have made the decision based on the material facts but since it was the decision that did not prevail, it is not binding and does not form part of the ratio of the final outcome, • Any general comment made by the judge on a principle of law which does not directly deal with the material facts.

16. 3.3 Judicial law-making ; do judges make law? • In deciding whether or not a precedent applies to a set of facts which has not previously been considered by the court or in choosing between competing precedents or constructing the meaning of a statute, the judges can be said to be creating the law. • The ‘rules’ of precedent and statutory interpretation are simply guiding structures within which judges necessarily exercise a wide measure of discretion.

17. Judicial Law Making • Courts are regularly faced with precedents which are completely clear but which are no longer in step with current values. • The judges are then faced with the choice of applying them or explicitly changing the law. • In 1991, for example, the courts held that a husband was no longer immune from prosecution for raping his wife (R v R). Until then, the common law rule was that by marrying, a woman effectively gave her ongoing consent to sexual intercourse with her husband. Instead of abiding by the precedent and leaving Parliament to abolish the immunity if it so wishes, the court went ahead and changed the law to bring it into line with current social attitudes to rape and marriage.

18. Judicial Law Making • Similar changes have arisen in relation to the interpretation of statutes. • In Fitzpatrick vs Sterling Housing Association (2001) the House of Lords held that the term ‘family’ in the Rent Act 1977 governing the rights of a member of a family of a protected tenant to inherit those rights on the tenant’s death should extend to same-sex partners. Although the law up to that time had been interpreted to include only heterosexual couples, the court held that the change was ‘in accordance with contemporary notions of social justice’.

19. Declaratory Theory • Although it seems clear that senior judges of the Court of Appeal and House of Lords and now the Supreme Court, are widely engaged in law-making this was not always the case. • It is also argued that it is impossible for judges to avoid making law as the distinction between the creation and interpretation of law is too fine to draw. • However, until relatively recently the traditional understanding of the judicial function was that judges do not make law. The judicial role was founded on the theory that ‘cases do not make law, but are the best evidence of what the law is’. Judges therefore in their decisions were merely declaring what the law is. This is called the ‘declaratory theory’.

20. Lord Simonds in the case of Midland Silicone Ltd v Scruttons Ltd [1962] AC 446, where he said “Nor will I easily be led by an undiscerning zeal for some abstract kind of justice to ignore our first duty which is to administer justice according to law, the law which is established for us by an Act of Parliament or the binding authority of precedent.”

21. Lord Greene, 1944 “The function of the legislature is to make the law, the function of the administration is to administer the law and the function of the judiciary is to interpret and enforce the law. The judiciary is not concerned with policy. It is not for the judiciary to decide what is in the public interest. These are the tasks of the legislature, which is put there for the purpose, and it is not right that it should shirk its responsibilities.”

22. 3.4 Horizontal precedents in the UK Supreme Court It is clear from the principle of judicial precedent that all lower courts are bound to follow the decisions of the Supreme Court/House of Lords. In the case of London Tramways vs. London City County Council (1898) it was held by the House of Lords that :- “Of Course, I do not deny that cases of individual hardship may arise, and there may be a current of opinion in the profession that such and such a judgment was erroneous ; but what is that occasional interference with what is perhaps abstract, as compared with the inconvenience…. of having each question subject to being rearguarded and the dealings of mankind rendered doubtful by reason of different decisions, so that in truth there is no final court of appeal. My Lords, ‘interest re publicae’ is that there should be ‘finis litium’ sometime and there can be no finis litium if it were possible to suggest in each case that it might be rearguarded because it is ‘not an ordinary case’ whatever that may meant’.

23. The above position taken by the House of Lords was changed when it issued the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234. The Practice Statement stated that :- “Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.

24. In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.” This announcement is not intended to affect the use of precedent elsewhere than in this House.”

25. Key points to note in the Practice Statement • the court would only rarely depart from an earlier decision • the court would be most likely to use the new freedom in situations where there had been significant social change so that a precedent was outdated or inappropriate to modern social conditions, values and practices • the court would be likely to depart from an earlier decision if there was a need to keep English common law in step with law of other jurisdictions • there was a special need for certainty in criminal law and as a result the court would be very reluctant to depart from an earlier decision in a criminal case.

26. The House of Lords was thereafter permitted to depart from its previous decisions and for example did so in the following cases • Miliangos vs. George Frank (Textiles) Ltd [1976] AC 443; [1975] 3 All ER 801 • British Railways Board vs. Herrington [1972] AC 877; [1972] 1 All ER 749 • R vs. Shivpuri [1987] AC 1; [1986] 2 All ER 334

27. Miliangos vs. George Frank (Textiles) Ltd [1976] AC 443; [1975] 3 All ER 801 – There was a decision in the House of Lords that all damages awarded to a party by an English Court must be paid in Sterling Pounds ; Havana Railways Case. The Court however overruled its previous decision and allowed damages to be paid by another currency reasoning that there have been changes in international trade since the time of the previous decision.

28. British Railways Board vs. Herrington [1972] AC 877; [1972] 1 All ER 749 – There were precedents by the House of Lords that there is a limited duty of care owed to children who trespassed on to property. The House stated that since those decisions were made there had been a change in public policy and the development of the law of negligence had altered the approach to the topic of responsibility for negligent actions. Therefore in this case the House held that where a child had trespassed on to the railway line through a breach in the security fence, the British Railways had breached its duty of care owed to that child was injured.

29. R vs. Shivpuri [1987] AC 1; [1986] 2 All ER 334 – A previous decision of the House established that a man cannot be punished under section 1 of the Criminal Attempts Act 1981 for attempting to do the impossible. In this case the House simply overruled an earlier decision of Anderton vs. Ryan on the basis that it was wrong. The House usually looked for other reasons such as change in policy to overrule a previous decision. This however was one of the very rare cases that the House overruled itself on the basis that is was wrong. • Another such example of the House of Lords invoking the Practice Statement can be seen in R vs. Howe where the case of R vs. Lynch was overruled simply on the basis that it was wrong in principle and could not be justified.

30. Does the 1966 Practice Statement apply to the Supreme Court? In Austin v Mayor and Burgesses of the London Borough of Southwark [2010] UKSC 28 Lord Hope argued (at para 25) that: “The Supreme Court has not thought it necessary to re-issue the Practice Statement as a fresh statement of practice in the Court’s own name. This is because it has as much effect in this Court as it did before the Appellate Committee in the House of Lords. It was part of the established jurisprudence relating to the conduct of appeals in the House of Lords which was transferred to this Court by section 40 of the Constitutional Reform Act 2005. So, it is probably the case that the Supreme Court can depart from its previous decisions and previous decisions of the House of Lords when it considers that ‘it would be right for it to do so’ (Lord Hope, para 25).”

31. 3.5 Vertical precedents of the Court of Appeal • During Lord Denning MR’s tenure in the Court of Appeal there was a tension as to whether the Court of Appeal should be strictly bound by the House of Lords. • There was an attempt by Lord Denning MR to change this rule with regard to the binding nature of decisions of the House of Lords on Court of Appeal. Lord Denning MR used two different ways by which to depart from certain binding cases. The tension began when Lord Denning overruled Re Havana Railways in Schorsch Meier GmbH vs Hennin

32. Lapsed rule – In Schorsch Meier GmbH vs. Hennin the German company sued and asked for judgment in Deutschmarks. The judge refused. The company appealed. There was a decision of the House of Lords only fourteen years before (Re Havana Railways) which held that an English court could only give judgment in sterling. The Court of Appeal ought to have followed the Havana case. However, Lord Denning sitting in the Court of Appeal applied the lapsed rule principle and overruled Havana Railways. The matter did not reach the House of Lords.

33. The later case of Miliangos vs. George Frank Textiles the Swiss firm saw the report in the Times of the Schorsch vs. Hennin case. Counsel amended his claim and asked for judgment in Swiss Francs. The case reached the House of Lords. The House themselves overruled the Havana case for it was only by doing so that they could give judgment in Swiss Francs. But in so doing the Lord Simon disagreed with Lord Denning’s right to overrule the House of Lords. This was because Lord Denning may otherwise have opened the flood gates by allowing any court to disclaim the authority of any higher court on the ground that the reason which had led to such higher court’s formulation of the rule of law was no longer relevant.

34. Per incuriamdecisions – A decision made per incuriamis where the court has failed to take into consideration authorities or statutes which are of vital importance to the decision of the case. The failure to take such authorities or statutes into account would result in a decision which is clearly erroneous. Such a decision means that the court has made a serious oversight in making its decision and does not mean that the court made the wrong decision on the law. In the case of Broome vs. Cassell judgment was entered overturning the Judgment of the House of Lords in Rookes vs. Barnard on the basis that the House of Lords decision was made per incuriam. When the case of Broome vs. Cassell reached the House of Lords, it rejected Lord Denning’s claim that the Court of Appeal can overrule or depart from a judgment of the House of Lords since it is bound to follow such a decision according to the doctrine of binding precedent.Lord Hailsham stated: • “In the hierarchical system of courts which exist in this country, it is necessary for each lower tier, including the court of appeal, to accept loyally the decisions of the higher tiers.”

35. With the retirement of Lord Denning the campaign to overrule decisions of the House of Lords against the principle of binding precedent has not been pursued and has in any event not been successful. • Thus the position on vertical precedent is that the Court of Appeal is bound by decisions of the House of Lords/UKSC whether or not the Court of Appeal approves of those decisions. Decisions of the Court of Appeal bind courts lower down the court hierarchy.

36. 3.6 Horizontal precedents of the Court of Appeal The Court of Appeal is bound by its own decisions, but can nevertheless depart and overrule its decisions in the following limited situations which was set out the case of Young vs. Bristol Aeroplance Co. :- • The Court of Appeal can choose between its own existing conflicting decisions. While such a situation should ideally not exist, where it does exist, the Court may depart from one of its decisions. This type of situation may arise since the Court of Appeal may hear similar cases at the same time or a previous case has not been reported or where a previous decision has been distinguished on facts. In Tiverton estates vs. Wearwell Ltd – the court elected to follow older precedents instead of the latest precedent, because it thought that the current precedent was based on a failure to properly understand the earlier decisions.

37. If a decision of the Court of Appeal had been overruled by the Supreme Court/House of Lords then the Court of Appeal is bound to follow the decision of the Supreme Court/House of Lords thereby departing from its own previous decision. This is a situation where the Court of Appeal is stuck between two rules of stare decisis. In Family Housing Association vs. Jones – the court of appeal felt compelled to ignore its own precedents even though they were not overruled but merely implicitly in conflict with later decisions of the House of Lords. • The Court is not bound by its own decisions found to have been made per incuriam.

38. 3.7 Binding nature of decisions of other courts on the Court of Appeal The Court of Appeal may sometimes be faced with a situation where an existing precedent of the Court is conflicting with :- • decisions of the Supreme Court/House of Lords, • Judicial Committee of the Privy Council and • the European Court of Justice and also if the decisions between each of those courts conflict. It is therefore important know how the Court of Appeal will face such a situation.

39. 3.7 Binding nature of decisions of other courts on the Court of Appeal • The Privy Council is not formally part of the hierarchical court structure of England. • Decisions of the Privy Council are not binding upon the Court of Appeal. • However, when we look at it from a practical standpoint, the Privy Council consist of Justices of the Supreme Court sitting in a different capacity. • For that reason Privy Council decisions are considered to be highly persuasive. Where there is a decision of the Privy Council which conflicts with a previous decision of the Court of Appeal, the Court of Appeal may (although it is not bound) choose to follow the principle laid down in the Privy Council. • The Court of Appeal in the case of Doughty v Turner followed the decision of the Privy Council in The Wagon Mound (No.2) over its own precedent set in Re Polemis.

40. 3.7 Binding nature of decisions of other courts on the Court of Appeal • The situation is similar even where the Court of Appeal is faced with conflicting decisions of the House of Lords and the Privy Council. • There were decisions both of the Supreme Court (R v Smith) and the Privy Council (Luc Thiet Thuan) concerning the defence of provocation to murder which were contrary to one another. • When a further case came before the Privy Council (Jersey v Holley) on the same principle the Privy Council had a Board of nine judges sit to resolve this conflict. The Privy Council in the latest decision of Jersey v Holley rejected the view of the Supreme Court in R v Smith thus resolving the conflict. • There after the Court of Appeal in the case of R v Faqir was faced with making a choice between these precedents laid down by the Supreme Court and the Privy Council and the Court of Appeal followed the latest and well considered decision of the Privy Council, thereby not following the Supreme Court decision.

41. 3.7 Binding nature of decisions of other courts on the Court of Appeal It is therefore clear that while Privy Council decisions are not binding on the Court of Appeal due to it not being part of the court structure, decisions of the Privy Council are considered to be highly persuasive to the extent that the Court of Appeal can overcome the strict rule of stare decisis by following a decision of the Privy Council.

42. 3.7 Binding nature of decisions of other courts on the Court of Appeal Decisions of the ECJ are considered to be authoritative rulings on the meaning and the interpretation of European legislation or treaty law. The ECJ is not part of the English Court structure and thus does not make any decisions with regard to domestic disputes. The only effect of ECJ decisions on English Courts is with regard to what European Union law is. Therefore, if the ECJ has made an authoritative ruling as to what the law is, it is up to the domestic court to fit that law into the facts in a case and make its decision. So for example if the Supreme Court follows an interpretation of European Union law set out by the ECJ in a case before it and creates a precedent, the Court of Appeal is bound to follow the decision of the Supreme Court on the law and the factual analysis of the case.

43. 3.8 UK Supreme Court and the Human Rights Act 1998 • Under s.2 - when decid­ing on questions under the Convention, courts must ‘take into account’ the case law of the European Court of Human Rights. They are therefore not explicitly bound by those decisions, but are under a duty to consider them. • Under s.3 - the courts are obliged to interpret legislation ‘in so far as it is possible’ in a way which is compatible with the European Convention on Human Rights. This require­ment means that the rules of interpretation by which the courts have been guided up until now, must take second place to the requirement that statutory provisions should be compatible with the Convention. Even if Parliament’s intention in passing the Act was clear, the courts must try to interpret the Act in a way which is compatible with the Convention, regardless of the intention of Parliament.

44. 3.8 UK Supreme Court and the Human Rights Act 1998 Lord Dyson states that :- • [T]he HRA reflects a careful balance between Parliament, the Executive and Judiciary. It is not entrenched and denies the courts the capacity to ‘strike down’ legislation for incompatibility. As Connor Gearty puts it, declarations of incompatibility ‘are courteous requests for a conversation, not pronouncements of truth from on high.’ In this way the Act specifically preserves Parliamentary sovereignty. If Parliament or the Executive disagree with a decision it remains open to them to change the law.

45. 3.8 UK Supreme Court and the Human Rights Act 1998 This view is supported by Lady Hale: • Secondly, the Human Rights Act does not require us to follow the Strasbourg jurisprudence, but it does require us to ‘take it into account’ (section 2(1)). The courts have given this a purposive interpretation. As the purpose of the Human Rights Act was avowedly to ‘bring rights home’ and avoid the need for people to take their cases to Strasbourg, we should take into account their jurisprudence with a view to finding out whether or not the claimant would win in Strasbourg.

46. 3.8 UK Supreme Court and the Human Rights Act 1998 But, keep in mind what Lord Dyson goes on to say: • Nonetheless, I would accept that there is some force in the point that the incorporation of the Convention has called on today’s judges to determine issues which judges in earlier eras would have been horrified to be asked to decide. They would have refused to do so on the grounds that such issues belonged to the political dimension and were not justiciable. But this enlargement of the role of the judge is no more than the development of a trend that was in progress before 1998 with the growth of judicial review. One only has to recall Lord Irvine of Lairg’s memorable injunction to the judges: ‘get your tanks off my lawn’. That warning, uttered with all the weight of one of Cardinal Wolsey’ successors, was made well before the incorporation of the Convention.

47. 3.8 UK Supreme Court and the Human Rights Act 1998 • What must be considered in the light of the above statements is whether the introduction of Human Rights Law into the domestic legal system has changed the doctrine of precedent. • Have courts received the authority to tread onto the sovereign power of Parliament? Or does the HRA only open up a dialogue between Courts and Parliament? • The right to declare statutes as being incompatible does not amount to the statute being struck down by court. It is stated that this only opens up a dialogue between the two by which incompatibilities can be ironed out.

48. The next matter for consideration then is whether an inferior court in the hierarchy can overrule the decision of a superior court in the hierarchy if the decision of the superior court appears to be inconsistent with a later ruling of the ECtHR. It was held in the case of Connor vs. UK [2004]that :- • If the national courts have to apply Convention jurisprudence, then they must do so in the prevalent terms of a national legal system: thus, as far as the UK is concerned: ‘the ordinary rules of precedent should apply.’

49. This statement gives us an idea that the fundamental structure of precedent has not been influence by the HRA. However, the widely accepted view with regard to the relationship between the judicial law making and the ECHR is set out by Lord Bingham as the ‘mirror principle’ :- • It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more but certainly no less.

50. Section 2 HRA Quote & Case Law In a lecture in December 2011 Lord Irvine, the Lord Chancellor responsible for introducing the HRA 1998, argued that Supreme Court judges have a ‘constitutional duty’ to reject ECtHR decisions they consider flawed and ‘should not abstain from deciding the case for themselves’.