The practice whereby courts will follow earlier relevant decisions is referred to as ‘Precedent’. It is a feature of both Civil and Common Law systems but in the case of common law systems Precedent, encapsulated in the principle of ‘Stare Decisis’ (let the decision stand), has a greater significance. In the following pages I will consider the nature of Precedent, its benefits, the pre-requisites for its implementation and its limitations. I will also examine the use of Precedent in the Irish Courts. In general terms, the decisions of a higher court are binding on lower courts.
The District and Circuit courts are bound in their decision making by precedent set in the Supreme and High Courts. The High Court is bound by the decisions of the Supreme Court. It is not strictly bound by its own earlier decisions but under the principle of ‘Stare Decisis’, it would generally follow them. There are obvious benefits to the system of precedent, including the following: The system provides a level of certainty of outcome. Although no two cases are identical, if the facts of a previous case were sufficiently similar a similar outcome can be anticipated.
This is, of course, very useful to a lawyer preparing a case and also to an individual considering litigation. It helps to ensure fairness and equity in that similar cases have similar outcomes. It is efficient because the courts do not have to spend time deciding matters that have been previously ruled upon. The decisions are realistic, in that, previous decisions have been ‘forged on the anvil of reason’. In other words, they were decided using actual facts rather than relying on hypothetical situations.
While it can be convincingly argued that the operation of the doctrine is highly desirable, there are a number of prerequisites, that must be in place, for that operation to be effective: There must be a reliable system of law reporting so that past cases are available to lawyers and judges. There must be a clearly defined and hierarchical court system. The rules for extracting the ‘Ratio Decidendi’* or ‘Rule’ from past cases must be clear. The rules for classifying the decisions into binding, persuasive and non-binding, must be clear.
The system must be widely accepted within the legal community. *The Ratio Decidendi, is the central reason for the judges decision. It is this part of the judgement that is binding. All other matter raised in the judgement are referred to as the ‘Obiter Dicta’, and may be persuasive in subsequent judgements but are not binding. Classification of precedents Precedents can be categorised into three distinct groups. Binding – The decision in the previous case must be followed. The decisions of higher courts are binding on the lower courts provided the facts of the case are sufficiently similar.
Persuasive – The previous decision can be considered persuasive but is not binding. The decisions of lower or foreign courts would fall into this category. The decisions in foreign courts are regularly cited in and adopted by, Irish courts, particularly where there is an absence of relevant Irish authority. The ‘obiter dicta’ of previous judgements would also have a persuasive authority. Non-Binding – The previous decision need not be followed because it has been ‘avoided’. There is scope within the doctrine of precedent for judges not to follow previous decisions.
The earlier decision is said to be ‘avoided’. This can be accomplished in a number of ways: 1. By distinguishing the facts of the case i. e. by identifying material differences between the cases which would render the earlier decision irrelevant to the present circumstances. 2. By declaring the ‘ratio’ of the earlier case to be unclear. 3. By declaring the previous decision to be too wide in its scope. 4. By declaring the previous decision to be in conflict with a fundamental principle of law e. g. earlier decision is contrary to the constitution. 5.
By declaring the previous judgement was made ‘per incuriam’ (literally, through lack of care), perhaps by ignoring a previous precedent or applicable piece of legislation. 6. By declaring that the previous decision was made ‘sub silentio’, which means that the point on which the judge ruled was not argued (was silent) before the court. 7. Where a previous decision has been altered by legislation or overruled in a later case. In practice cases are seldom overruled. It is much more likely that a judge will distinguish the facts of the case before him from the previous decision.
This may confine the previous case to a very narrow set of circumstances and be almost the same, in effect, as overruling it. The operation of Precedent in the Irish Courts. Supreme Court Under the doctrine of precedent only the decisions of superior courts are binding. The Supreme Court is not bound by its own previous decisions. This allows it a degree of flexibility in its decision making. This principle was contained in a ruling by Kingsmill Moore J, in Attorney General v Ryan’s Car Hire Ltd,1 where he stated:
‘In my opinion the rigid rule of ‘stare decisis’, must, in a Court of ultimate resort, give place to a more elastic formula. Where such a Court is clearly of the opinion that an earlier decision was erroneous it should be at liberty to refuse to follow it at all events except in exceptional circumstances. ‘ While, in general, the Court will follow its own rulings, it reserves the freedom to depart from them for compelling reasons. Stare Decisis is considered to be a policy of the Supreme Court rather than a strict and inflexible rule. High Court.
Ordinarily the High Court as a court of trial, is not considered to be absolutely bound by its earlier decisions. Nevertheless, Black J stated his preference for following the decisions of a court of co-ordinate jurisdiction thus:2 ‘If I were confronted with a decision of a court of co-ordinate jurisdiction, which appeared to me of merely doubtful soundness, I nonetheless applied the rule of comity and followed it………… But if I was presented with a decision of a court of co-ordinate jurisdiction, my dislike of which, went beyond mere doubt and amounted to a firm conviction that it was wrong, then I declined to follow it’3
The position was further explained by Parke J when he stated: ‘A court may depart from a decision of a court of equal jurisdiction if it appears that such a decision was given in a case in which either insufficient authority was cited or incorrect submissions advanced or in which the nature and wording of the judgement itself reveals that the judge disregarded or misunderstood an important element in the case or the arguments submitted to him or the authority cited or in some other way departed from the proper standard to be adopted in judicial determination’ 3.
It is clear that although the High Court will generally apply the rule of Stare Decisis, it is not required to slavishly follow previous decisions if convinced that the decision reached was wrong in law or incorrectly arrived at. The Court of Criminal Appeal This Court has also exercised its prerogative to depart from previous decisions. In The People (Attorney General) v Moore, the Court refused to follow its earlier decision in The People (Attorney General) v O’Neill.
Counsel on behalf of the Attorney General noted that he was unaware of previous cases where the question of whether the Court was bound by its earlier decisions had arisen. However, he cited the case of R v Norman, in which the Court of Criminal Appeal in England expressly overruled its previous decision in R v Stanley. Davitt P, while stating that the Court did not have the Jurisdiction to overrule the Courts earlier decision in O’Neill, went on to observe, ‘We are, however, encouraged by the decision in Norman’s case to take the course which we now propose to adopt.
We are not unmindful of the principle of Stare Decisis and of the desirability of having uniformity in judicial decisions interpreting the law. We think, however, that the interests of justice will be best served by giving effect to our own opinions, even though they differ from those expressed in O’Neills case.. ‘ 4 There is however, an important distinction between the English decision and that of the Irish court as noted in Byrne and McCutcheon – The Irish Legal System,5.
The less strict approach of the English Court of Criminal Appeal was based on a concern for personal liberty; the Court would not uphold a conviction on the basis of a precedent which it considered to have been wrongly decided. However, in Moore the reverse occurred. The Court of Criminal Appeal upheld a conviction despite its earlier decision which would have warranted an acquittal. It might be argued that the libertarian concerns which informed the English decision did not apply here and the Courts refusal to follow the earlier case could be considered questionable.
An appeal to the Supreme Court in this case was abandoned so that court never got to comment on the operation of precedent in the Court of Criminal Appeal. Nonetheless, the case does demonstrate that the Court, while mindful of Stare Decisis, reserves the right to form its own opinions and arrive at a different decision to that reached in an earlier case. Decisions of Lower Courts As stated above, the decisions of lower courts are not binding on the superior courts but may be persuasive.
The superior court may ignore them or indeed overrule them if they are considered to be wrongly decided or no longer appropriate. The Supreme Court, as the court of final appeal, is expected to provide authoritative rulings for all other courts. It must, therefore, have the freedom to overrule the decisions of the inferior courts. Decisions of foreign Courts In common with the judgements of inferior courts, those of foreign Courts, are not binding but may be persuasive. This is particularly so in relation to countries which use a Common Law system.
Given the shared history of the English and Irish Court systems it is to be expected that the majority of foreign cases cited in the Irish Courts are those of English Courts. However, it is arguable that decisions of the English courts should have no more binding effect than those of other jurisdictions on decisions of the Irish courts and it could be argued that the UK, with its lack of written constitution should be afforded less accord than decisions of say the, US Supreme Court, which has broad constitutional similarities and observes a similar legal philosophy.
In conclusion, the principle of Precedent is well established in the Irish Courts. Its benefits in relation to fairness, certainty and efficiency, as described above, are universally accepted. However, caution should be exercised in relying on the courts to follow a precedent. They have demonstrated a desire to remain independent in thought and as illustrated in some of the examples above, will on occasion make rulings that are quite contrary to those that have gone before.