Ratio Decidendi and Obiter Dictum

The decision or judgement of a judge may fall into two parts: the ratio decidendi (reason for the decision) and obiter dictum (something said by the way). RATIO DECIDENDI - The ratio decidendi of a case is the principle of law on which a decision is based. When a judge delivers judgement in a case he outlines the facts which he finds have been proved on the evidence. Then he applies the law to those facts and arrives at a decision, for which he gives the reason (ratio decidendi).

OBITER DICTUM - The judge may go on to speculate about what his decision would or might have been if the facts of the case had been different. This is an obiter dictum. The binding part of a judicial decision is the ratio decidendi. An obiter dictum is not binding in later cases because it was not strictly relevant to the matter in issue in the original case. However, an obiter dictum may be of persuasive (as opposed to binding) authority in later cases.

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THE COURT HIERARCHY

THE EUROPEAN COURT OF JUSTICE

Under s3(1) of the European Communities Act 1972, decisions of the ECJ are binding, in matters of Community law, on all courts up to and including the House of Lords.

THE HOUSE OF LORDS

This is the highest court in the land unless a matter of EC law is involved. The House of Lords was bound by its own previous decisions until 1966 when Lord Gardiner LC announced a change of practice.

The Practice Statement [1966] 1 WLR 1234 stated that although the House of Lords would treat its decisions as normally binding it would depart from these when it appeared right to do so. This power has been used sparingly. A decision of the House of Lords binds all lower courts.

COURT OF APPEAL (CIVIL DIVISION)

The Court of Appeal is bound by decisions of the House of Lords even if it considers them to be wrong. In Young v Bristol Aeroplane Co Ltd [1944] KB 718, the Court of Appeal held that it was bound by its own previous decisions subject to the following three exceptions: * Where its own previous decisions conflict, the Court of Appeal must decide which to follow and which to reject. * The Court of Appeal must refuse to follow a decision of its own which cannot stand with a decision of the House of Lords even though its decision has not been expressly overruled by the House of Lords. * The Court of Appeal need not follow a decision of its own if satisfied that it was given per incuriam (literally, by carelessness or mistake). Decisions of the Court of Appeal itself are binding on the High Court and the county courts.

COURT OF APPEAL (CRIMINAL DIVISION)

In principle there is no difference in the application of stare decisis in the civil and criminal divisions of the Court of Appeal. In practice, however, in addition to the Young exceptions, because a person's liberty may be at stake, precedent is not followed as rigidly in the criminal division. In R v Taylor [1950] 2 KB 368 the Court of Appeal held that in 'questions involving the liberty of the subject' if a full court considered that 'the law has either been misapplied or misunderstood' then it must reconsider the earlier decision.

THE HIGH COURT

The High Court is bound by the Court of Appeal and the House of Lords but is not bound by other High Court decisions. However, they are of strong persuasive authority in the High Court and are usually followed. Decisions of individual High Court judges are binding on the county courts. A Divisional Court is bound by the House of Lords and the Court of Appeal and normally follows a previous decision of another Divisional Court but may depart from it if it believes that the previous decision was wrong: R v Greater Manchester Coroner, ex parte Tal [1985] QB 67.

CROWN COURTS

Decisions made on points of law by judges sitting at the Crown Court are not binding, though they are of persuasive authority. Therefore, there is no obligation on other Crown Court judges to follow them.

COUNTY COURTS AND MAGISTRATES' COURTS

The decisions of these courts are not binding. They are rarely important in law and are not usually reported in the law reports.

PERSUASIVE PRECEDENTS

A persuasive precedent is one which is not absolutely binding on a court but which may be applied. The following are some examples: Decisions of English courts lower in the hierarchy. For example, the House of Lords may follow a Court of Appeal decision, and the Court of appeal may follow a High Court decision, although not strictly bound to do so. Decisions of the Judicial Committee of the Privy Council. Decisions of the courts in Scotland, Ireland, the Commonwealth (especially Australia, Canada and New Zealand), and the USA. These are usually cited where there is a shortage or total lack of English authority on a point. * Obiter dicta of English judges.

ADVANTAGES AND DISADVANTAGES OF PRECEDENT

ADVANTAGES

• There is certainty in the law. By looking at existing precedents it is possible to forecast what a decision will be and plan accordingly.
• There is uniformity in the law. Similar cases will be treated in the same way. This is important to give the system a sense of justice and to make the system acceptable to the public.
• Judicial precedent is flexible. There are a number of ways to avoid precedents and this enables the system to change and to adapt to new situations.
• Judicial precedent is practical in nature. It is based on real facts, unlike legislation.
• Judicial precedent is detailed. There is a wealth of cases to which to refer.

DISADVANTAGES

• Difficulties can arise in deciding what the ratio decidendi is, particularly if there are a number of reasons.
• There may be a considerable wait for a case to come to court for a point to be decided.
• Cases can easily be distinguished on their facts to avoid following an inconvenient precedent.
• There is far too much case law and it is too complex.