We will consider the following
• What is the system of hierarchy in the
• What is meant by Judicial Precedent?
• What is a ratio?
• What does obiter dictum mean?
• What are the material facts of a case?
The case of R v R (1991)
The defendant married his wife in 1984. As a result of matrimonial
difficulties the wife left the matrimonial home in 1989 and returned to live
with her parents, informing the defendant of her intention to petition for
divorce. The defendant also communicated to the wife his intention to "see
about a divorce."
While the wife was staying at her parents' house, the defendant forced his
way in and attempted to have sexual intercourse with her, in the course of
which attempt he assaulted her. He was charged on indictment with rape
and assault occasioning actual bodily harm.
Under the Sexual Offences (Amendment) Act 1976 the offence of rape was
one which was not known to the law where the defendant was the husband
of the alleged victim.
The law states that there is no criminal offence of rape
Introducing an Act of Parliament would take too long
Acquitting the defendant would clearly be morally
“wrong”, although not wrong in legal terms.
The judge makes a decision.
In the case of R v R, that rape within marriage is still
rape, and should therefore be treated as a criminal
The decision then influences future similar cases by
creating a „precedent‟ for other courts to follow.
This method of making law is known as „judicial
precedent‟, or „case-law‟, or „common law‟.
The source of law where past decisions of the
judges create law for future judges to follow.
Judges create law for It is also known as
future judges. stare decisis – stand
by what has been
decided (and do not
Rationale is established)
fairness and Judicial Precedent
the law A judge must
Some courts must also decision made by
follow their own a higher court in a
previous decisions – case with similar
they are said to bind facts.
Precedent can only operate if the legal reasons for past decisions
At the end of a case there will be a „judgement‟ – a speech made
by the judge(s) hearing the case, which includes an explanation
of the reasons, or principles of law he is using to come to the
These principles are known as „ratio decidendi‟ – the reason for
deciding. This is what creates a precedent for judges to follow in
The rest of the judgement is known as „obiter dictum‟ – other
When a Judge
Ratio makes a decision,
Decidendi they will give a
means reason statement of the
for deciding. facts, a verdict and
It is not It is the ratio that
always easy creates new law and
to find the this must be
ratio in a followed by judges
case. in lower courts.
• The judgement in a case may be several
• Not all of this information relates to the
• This is known as „Obiter Dictum‟ or
“ a thing said by the way.”
Obiter dicta statements are not binding on a
• Obiter comments can arise in many ways:
• The judge may say
“If the facts had been different then my decision
would have been …”
• The judge may make a number of general
comments on the topic of law under discussion
• The judge may say what he would have decided if
he/she had not been bound by stare decisis.
• We now know that the ratio of the case has to be
followed and things said by the way do not.
• The doctrine of stare decisis tells us that one court
must follow the ratio of a superior court when
dealing with similar cases.
• It cannot tell us, however, when two cases are
• If the facts were identical, then there would be no
problem – BUT the facts change from case to
• As no two cases are identical, what needs to
be decided is whether two cases are
sufficiently similar that they should be
treated the same.
• A quick comparison of the facts can help
but it is limited:
• Consider this example:
A man driving a Ford Escort runs
over an old lady who was using a
zebra crossing. He is found guilty
of reckless driving.
A woman driving a BMW runs over an old man
who was crossing the road.
Is she guilty too?
• It is impossible to determine if the woman
is guilty or not without first understanding
WHY the man was guilty in Case 1.
• Was it important that the old lady was on a
• Was it important that she was an old lady?
• Does it matter that the woman was driving
a different car?
The Key Question
• The question as to WHY
guilt was found is all
To determine why a decision was made, it is necessary to
determine the material facts of the case.
Back to our earlier example:
• Case 1
Alfred was found guilty of reckless driving – the facts of
the case were:
a) The old lady was lawfully and carefully crossing by a
b) Alfred was speeding.
c) Alfred was not looking where he was going.
d) The weather conditions were excellent.
• The reason why he was guilty or the ratio of this
case might be:
“When a person is speeding in good weather
conditions and not looking where they are going,
they will be guilty of reckless driving if they injure
a pedestrian who is crossing the road.”
The fact that Alfred was male, the victim was
female and that the car was a Ford Escort are not
relevant so are not material facts.
• If we apply the facts of Case 2 to this
• The old man was not using a pedestrian
crossing but was carefully crossing the road.
• The woman was speeding.
• She was not looking where she was going.
• The weather conditions were excellent.
What‟s The Difference?
• The only difference was that the old man was not using a
pedestrian crossing. The question to ask is whether these
two cases are sufficiently similar.
• Do you think it should make a difference that the man was
not using a pedestrian crossing?
• If the case is sufficiently similar then the judge will have to
follow the decision in Case 1.
• If the fact that the man was not on a pedestrian crossing
makes a difference then the judge is free to make a new
decision and does not have to follow case 1.
What Are The Material Facts?
• Material facts are ones which will affect the
decision or outcome of a case.
Whether or not a precedent is binding determines whether a
court at a later date has to follow the ratio, or whether it
merely has to be considered.
Therefore, knowledge of the hierarchy of the courts is
crucial to understanding precedent
TASK: Using memory alone, you are to illustrate the
hierarchy of the courts (criminal and civil)
Hierarchy of the courts
In order for the system of judicial precedent to work, there
must be rules for judges to follow to make sure that there
is consistency in the law.
One way of doing this is to have a system on hierarchy,
where decisions in the superior courts bind those of the
inferior court. Some courts are bound by their own
The European Court of The
The House of Lords of the
The Court of Appeal Courts
The High Court The Crown Court
Family Chancery Queen‟s Bench
Division Division Division
County Court Magistrate‟s Court
House of Lords
The House of Lords is the most senior court in England and
Wales. Decisions made here bind all the courts below.
The House of Lords is also bound by its own previous
decisions. However, it may depart from its previous
decisions when it appears ‘right to do so’ (Practice
Court of Appeal
The Court of Appeal is bound by the decisions of the House
of Lords. It is also bound by its own previous decisions.
However, the case of Young v Bristol Aeroplane (1944) set
out three exceptions when the Court can depart from its
own previous decisions.
The High Court is bound by the courts above and binds the
courts below it.
Crown Court, County Court and
The inferior courts are not bound by their own decisions,
nor do they bind other courts. This is because they do not
make precedents; they just apply the precedents set by
the higher courts.
Types of precedent
There are two types of precedent:
A binding precedent is the part of a judgement that other
judges have to follow.
The ratio decidendi (reason for deciding) made by a
judge high enough in the hierarchy will bind future
decisions of other judges.
A persuasive precedent need not be followed, but it may be
helpful to a judge making a decision. If a judge decides to
follow a past decision that was not binding, the decision is
said to be persuaded.Persuasive precedents include:
• a decision of a lower court (R v R, 1991)
• a decision of a court outside the English hierarchy (Re S,
• an obita dicta (R v Howe, 1987)
• a statement of law made by a dissenting judge
How precedent works
5. House of Lords Practice Statement 1966
6. Court of Appeal – Young v Bristol Aeroplane (1944)
If the material facts of a case are significantly similar to an
existing precedent, the judge should always follow the
A superior court may overrule the decision of a court
below it and therefore change the law.
A superior court may change the outcome of a case from a
lower court based on the same law, e.g. the Crown Court
applies the existing law and finds the defendant guilty,
whereas the Court of Appeal finds the person not guilty
when applying the same law.
If the facts of a case are significantly different from the
facts of an earlier case, the judge does not have to follow
the precedent that is already established.
House of Lords
Practice Statement 1966
Before 1966, the House of Lords was bound by its own
decisions. This meant that the law was certain but it could
In 1966, the House of Lords passed the Practice Statement,
which allows it to change one of its previous decisions when it
appears ‘right to do so’, e.g. R v Howe (1987) overruled DPP
v Lynch (1973), and R v Shivpuri overruled Anderton v Ryan
Court of Appeal:
Young v Bristol Aeroplane
The Court of Appeal should follow its own previous decisions.
However, the case of Young v Bristol Aeroplane (1944) set out
three exceptions when it can depart from its own previous
• If two previous Court of Appeal decisions conflict, it may
decide which to reject and which to follow.
• Where there is a conflicting House of Lords decision, the Court
of Appeal must follow this and reject its own past decision.
• The previous decision was made per incuriam.
Parliament is democratically elected, so it would seem that
its members are the best people to make laws for the
Due to lack of parliamentary time, it may be important for
some laws to be made by judges.