The binding element in precedents

 

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

2. The binding part (if any) 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. The ratio is not the decision itself. Only the litigating parties are bound by the actual decision in a case whereas the ratio of a case states the law for all persons and may be binding in later cases.

3. The traditional view was that the ratio decidendi of a case was what it was perceived to be by the judge who decided the case. But the difficulty with this approach is that the judge may have expressed the principle too widely or too narrowly for it to be useful in a later case. Moreover, in appellate courts each judge may state the principle in different language and so it is not always easy to discover the ratio by a quotation from any one judgment.

4. The modern, generally accepted view is the ratio decidendi of a case is what it is determined to be by a court in a later case and what the judge in the original case considered it to be. This objective approach towards finding the ratio of a case makes it possible for a judge in a later case to relegate to the status of obiter dicta statements, which had hitherto been to be ratio. It also means that. Since the facts of two cases are unlikely to be identical, the judge in the later case usually ha the task of either restricting or enlarging the ratio of the earlier case. If he decides that the ratio does not apply to the facts before him he is restricting its scope. If he decides that the ratio does apply to the different factual situation he is enlarging its scope.

5. Discovering the ratio decidendi of a case is often difficult but it may involve the separation of the relevant and irrelevant parts of a judgment. The ratio will hardly ever be stated explicitly in the judgment but will be found buried among a mass of dicta. In some respects the old cases are easier to read because the reporter did not always trouble to report what he considered to be mere obiter dicta. The ratio may not be accurately encapsulated in the headnote to the law report. The reporter may have misinterpreted the decision and attempted to state the ratio too widely or too narrowly. The decision in a case and, therefore, the ratio decidendi must always depend on the particular facts of the individual case. To discover the ratio of a case all the facts found by the judge to be material must be considered. Whatever words are not necessary for the decision must be obiter. However, a judge may give two or more reasons for his decision in which event they are both all rationes decidendi and not mere obiter dicta.

(Ingham, The English Legal Process (Blackstone Press 1990), pp. 173-174,193)

Task 9. Make up the plans and form questions to the following text:

Common Law rules

 

Where a statute is not clarified by reference to the above statutory guides, a judge may look to the following common law rules:

(i) “The Literal Rule” lays down that words must be given their literal, grammatical meaning. Words in old statutes are given the meaning they had when the statute was passed, e.g. The Statute of Treason, 1351. Words appearing more than once must usually be given the same meaning throughout the Act. The duty of the court is to interpret the words that the legislature has used. If a statute so interpreted is clear and produces hardship, the remedy is to create a new statute; it is not the duty of a judge to fill in the gaps.

(ii) “ The Mischief Rule” isalso known as the Rule in Heydon’s case (1584), lays down that the court must look at the Act to see what mischief or defect in the common law the Act was passed to prevent. Four questions should be considered:

1. What was the common law before the Act was passed?

2. What was the mischief and defect for which the common law did not provide?

3. What remedy had Parliament resolved to provide?

4. What was the true reason for the remedy?

Judges were enjoined to make such construction “as shall suppress the mischief and advance the remedy”.

(iii) “ The Golden Rule” lays down that a judge should construe the statute in its grammatical and ordinary sense:

“It is a very useful rule in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience, but no further” (Parke, В., in Becke v. Smith, 1836).

For example, section 57 of the Offences Against the Person Act, 1861, defines the offence of bigamy and provides: “Whosoever being married shall marry any other person during the life of the former husband or wife... shall be guilty of bigamy.” Under English law a married person cannot “marry”, and to avoid absurdity or repugnance the word “marry” in this section means “to go through the form of marriage” (R. v. Allen, 1872).

(iv) The “Ejusdem Generis” Rule. Where general words follow specific words, the general words must be construed as applying to the persons or things of the same class (ejusdem generis) as those already mentioned. Thus “other person”, “other cattle”, “other animals” are vague and a reference in an Act to “dogs, cats, and other animals” was held not to include lions and tigers, for “other animals” meant those ejusdem generis with dogs and cats, i.e. domestic animals (Evans v. Cross, 1938).

(v) Expressio unius est exdusio alterius (the express mention of one thing implies the exclusion of another). This means that where specific words are used in a statute and are not followed by general words, the statute applies only to those things mentioned.

(vi) Noscitur a sociis (the meaning of a word can be comprehended from its context). Ambiguous or doubtful words may be determined by reference to those words appearing in association with them.

(vii) The Exclusionary Rule excludes reference to parliamentary materials in interpreting an Act. However, if the Act is ambiguous or obscure, or its literal meaning leads to an absurdity, the court may have regard to the Official Report of Debates (usually referred to as Hansard)for assistance in interpreting the Act (Pepper v. Hart, 1993).

 

Task 10. Review the text:

 

Presumptions

 

Certain presumptions or rules of evidence must also be born in mind. These presumptions apply to the construction of a statute, unless there are express words to the contrary. The following examples are some of the more important presumptions in law:

(a) The presumption against criminal liability, unless mens rea (guilty mind) is shown to exist. Proof of criminal intent is generally necessary to secure a conviction. Thus a motorist involved in a road accident of which he or she was unaware, could not rightly be convicted of “failing to report the accident to the police within 24 hours”, since the motorist was unaware of involvement, and the law does not compel the impossible (Harding v. Price, 1948).

(b) The presumption against the ouster of jurisdiction of the courts. Thus, where a particular statute provides that tribunals be set up to determine questions arising in administration (as under the National Service Act, 1948, to consider appeals for postponement of military service) and excludes the jurisdiction of the courts of law expressly, then the terms of the statute will be applied. Where no such express terms exist the jurisdiction of the courts is not ousted.

(c) The presumption that the Crown is not bound by statute, unless expressly stated therein.

(d) The presumption that a statute does not alter the general principles of the common law, unless expressly so stated.

(e) The presumption against the infringement of international law.

(f) The presumption against the deprivation of property. Statutes empower­ing the acquisition of private property will be strictly construed. Where private property is taken away from an owner, the law infers that compensation will be paid unless there are clear words in the statute to the contrary.

(g) The presumption against arbitrary conduct and abuse of a power given by statute.

(h) The presumption that the legal meaning of an Act is that which corresponds to its literal meaning.

Task 11. Write down the resume:

 

Reference to statutes

 

There are three forms of referring to an Act of Parliament: by its short title, by its official reference, or by its full title.

(a) Short Title. When we refer to an Act such as the Theft Act, 1968, or the Data Protection Act, 1984, we are using its short title.

(b) Official Reference. This shows the calendar year in which the Act was passed and the number of the Chapter (or Act) passed in that year. For example,

1968 CHAPTER 60

is the official reference to the Theft Act, 1968, and

1984 CHAPTER 35

is the official reference to the Data Protection Act, 1984.

(c) Full Title. This gives the official reference and a short description of the object of the statute. For example, the full title of the Theft Act, 1968, is

ELIZABETH II 1968 CHAPTER 60

An Act to revise the law of England and Wales as to theft and similar associated offences, and in connection therewith to make provision as to criminal proceedings by one party to a marriage against the other, and to make certain amendments extending beyond England and Wales in the Post Office Act, 1953 and other enactments; and for other purposes connected therewith.

The full title of the Data Protection Act, 1984, is

ELIZABETH II 1984 CHAPTER 35

An Act to regulate the use of automatically processed information relating to individuals and the provision of services in respect to such information.

 

Reference to statutory instruments

 

The most common form of delegated legislation is the statutory instrument. Each statutory instrument is allocated a number, and reference to the instrument is to the year of issue followed by the number so allocated. For example,

S.I. 1968 No. 1911

relates to the Town and Country Planning (Planning Inquiry Commissions) Regulations, 1968.

The printing of Bills, Acts of Parliament and statutory instruments is done by Her Majesty’s Stationery Office. The Statutory Instruments (Production 1730, Sir Edward Coke’s Institutes (1628-41), Sir William Blackstone’s Commentaries (1765), and Sir Michael Foster’s Crown Law (eighteenth century).

The above works and a few other early works, written when law reporting had barely begun, are accepted as books of authority and therefore as an original source of common law.

The modern textbook is not a source of law, and not a book of authority. However, such works may have persuasive authority; counsel may adopt the view of a distinguished academic writer and the court may accept that view of the law. In this way the writer is influencing the law. Works by Cheshire, Dicey, Winfield, Salmond, Williams and Smith and Hogan have often been referred to in this way, particularly on points which are not covered by authority or where there is some doubt about the authority. As Mr. R.J. Walker has commented, “On the whole the persuasive authority of a standard textbook is of considerable weight.”

Similarly, articles in legal journals such as the Criminal Law Review, the Law Quarterly Review and the Cambridge Law Journal have been referred to in the courts.