Ratio Decidendi & Obiter Dicta
Ratio Decidendi & Obiter Dicta
Persuasive Precedent- Precedent which is not binding on the court which is deciding a later case but may persuade court to follow it. Persuasive come from a number of sources.
Dissenting Judgements-Where a judge disagrees with the majority e.g.. 2-1 in the C/A the judge who disagreed will explain his reasoning. If the case is then appealed to the Supreme Court, they may prefer the dissenting judgement and persuaded to follow it
Decisions of the courts in other countries- This includes Scotland and the US, and especially countries which based their legal system on our common law such as Canada & Australia.
Courts lower in the hierarchy- E.g. R v R the HL agreed with and followed the same reasoning as the CA in deciding a man could be guilty of raping wife
Decisions of the Privy Council- This court not part of court hierarchy in England & Wales, but many judges also members of Supreme Court, their judgements treated respect and may often followed.
Statements made obiter dicta- Particularly comments made by the Supreme Court/HL. E.g. CA in R v Gotts 1992 persuaded by the obiter dictum of the HL in R v Howe
Holley- Privy ruling defence of provocation which conflict with an earlier judgement of the House if Lords in Smith. Although binding on English, courts, CA followed Holley
Obter Dicta (Non-binding)- "other things said" refers to any statements of law by the judge in decision not an essential part of ratio decidendi.
Obiter dictum statements do not form part of the binding precedent so that judges in future cases do not to follow them but it may be persuasive authority and legal reasoning may be followed in future cases.
Judges do not actually separate their judgments into the ratio and obiter dictum and it can be difficult when reading the case determine what the ratio is. It is hardly ever stated expressly and in appeal courts there may be more than one judgement with different ratios.
R v Gotts- D tried to kill his mother because his father threatened him with violence if he didn't, but she survived the stabbing.
Law- D of duress not available attempted murder. CA persuaded by obiter dicta from HL in R v Howe in which the HL expressed the view duress should a defence to attempt murder. Howe was a Murder case so comments about Attempted Murder were not binding.
Ratio Decidendi (Binding)- The legal principle upon which the decision of the court is based is called R, meaning reason for deciding. The RD is the binding part of the decision. It must be followed by other judges in similar cases
R v Howe- D took part in murder but claimed he was acting under duress because of threat to kill if he didn't.Decision defence of duress is not available to a charge of murder.
Rule followed by Court of Appeal in case of Ashlee Wilson When d only 13, helped father murder mother he was too frightened to disobe
Original Precedent- Point of law a case has never been decided before then whatever the judge decides will form a new precedent for future cases. Gillick the HL had decide whether girls under 16 could be prescribed contraception without parental consent
Donoghue v Stevenson- Law of negligence. Café decomposed snail came out of the bottle. Ms D became ill, could not sue the café owner as she was not party to a contract.
Duty in law not to do anything which they should realise might cause injury other people. Ginger beer manufacturer, Stevenson, negligent. Owed Mrs D duty of care he had broken. Therefore, Mrs D entitled to compensation make up for suffering
Binding Precedent- Precedent from earlier case must be followed even if judge in later case does not agree with legal principle.
Facts of the case being decided sufficiently similar to the original case and made by a court senior to court which present case is being. Only the ratio decidendi of the case is binding. E.g. CA in Ashley Wilson 2007 bound by the ratio of the HL in R v Howe 1987
Stare Decisis- Stand by what has been decided and do not unsettle the established. This principle supports the idea of consistency and certainty in law.
Judgement- is a combination of the ratio decidendi and obiter dicta. In appeal courts there will be at least two judges and Supreme there can be up to a maximum of 7. The ratio used each judges may be different and this can cause problems in later cases.