Can things said obiter ever be binding? The changing rules in the game of precedent.

This is the first blog post on the new website, aimed to support those teaching and learning about the legal system of England and Wales. It is intended to accompany the textbook the English and Welsh Legal System: https://www.routledge.com/English-Legal-System/Murphy-Burton/p/book/9781138783690

If you were to ask a lawyer or a legal academic to explain the difference between the ratio of a case and comments made obiter dictum then one of the agreed answers would likely be that the ratio in a judgment is binding and comments made in obiter are not. Indeed, perusing the very many textbooks on the Legal System of England & Wales that cover my bookcases confirms this view. It was my view for a very long time.

The trouble, according to many of those who teach and write about English legal method is in identifying the ratio and things said in obiter - caused in part by the ability for multiple judges in an appeal to give individual judgments in a case and by a reluctance for courts to expressly state the ratio(s) in a particular case. When the identification is done then, orthodoxy goes, there are bright and clear lines between the impact of the ratio and obiter for future cases. The non-binding nature of things said obiter dictum is, therefore, presented as a fundamental tenet of the doctrine of stare decisis or precedent. There, are of course, multiple ways in which the ratio of an otherwise binding judgment can be avoided but this is a different issue that is covered well elsewhere.

This blog post demonstrates – taking the case of R v Barton [2020] EWCA Crim 575 handed down on the 29th April 2020 as a starting point - that the ‘rules’ of precedent are not quite so straightforward as orthodoxy would have us believe. The rules are not static and unmoving but are rather a creature and tool of the common law. The consequence is that the common law can allow them to evolve and change and has done so in recent times. There is an understandable reluctance on the part of the judiciary to have the rules being too flexible because the very nature of precedent is to preserve legal certainty. This is a judgment in a line of cases where we can see the nuance and majesty of the doctrine of precedent and its ability to shake our belief in what we thought we always knew as basic principles of English law.

In R v Barton a crowded Court of Appeal (consisting of the Lord Chief Justice, the President of the Queen’s Bench Division, the Vice President of the Court of Appeal Criminal Division and two others) had to consider whether remarks made obiter dictum in the Supreme Court were binding.

The issue in R v Barton

The purpose of this post is not to engage with a discussion of the substantive law at issue. The basic case is a (relatively) straightforward appeal against conviction for dishonesty offences. The Court of Appeal had to decide whether to apply the long-standing approach to directions on dishonesty found in the earlier Court of Appeal decision in R v Ghosh [1982] QB 1053 or whether to follow a direction of the Supreme Court, made purely obiter by Lord Hughes, in Ivey v Genting Casinos [2017] UKSC 67 to disregard Ghosh and apply a different approach to dishonesty directions.

The Court of Appeal had to consider whether it was bound by the obiter dictum statement in the Supreme Court judgment or by the ratio in one of its own earlier judgments and, if so, on what basis.

Alternative solutions

To start at the end, the Court of Appeal found that it was bound by the obiter of the Supreme Court in Ivey and that it could (indeed, must) disregard the judgment in Ghosh. It acknowledged that the rules of precedent had been amended by the Supreme Court.

This was not a foregone conclusion. There are at least two other ways in which the Court of Appeal could have dealt with the issue without extending or altering our understanding of the rules of precedent.

1. The Court of Appeal could have settled the case on the basis that it was bound by the judgment in Ghosh but readily allow an appeal for the matter to be returned to the Supreme Court for a definitive ruling (i.e. to give the Supreme Court the opportunity to transfer the obiter of Ivey into a binding ratio in the present case). This possibility was acknowledged by the Court of Appeal at [93]

2. Call upon the inherent and long-standing ‘flexibility’ enjoyed by the Criminal Division of the Court of Appeal to depart from its own earlier judgments. [95]-[96]

Both alternatives have some merit but are not without their own problems.

On the first, there is no guarantee that the parties in the case would appeal and the question would remain unresolved and could leave courts further down the hierarchy in the same unenviable position. Or even lead to a later Court of Appeal faced with the same dilemma considering whether Barton had been decided per incuriam.

The second is also problematic in the sense that it creates a level of uncertainty about the flexibility inherent in the Court of Appeal’s ability to depart from its own judgments. The Court of Appeal should be wary of drawing that particular power too widely.

Neither would definitively give an answer as to the binding nature of certain obiter statements made by the Supreme Court. As we shall see later, it would also run counter to an emerging pattern of courts to adapt the rules of precedent.

The actual solution and its conditions

The Court of Appeal did not avoid the issue with one of the above alternatives but rather explored it from the perspective of whether they were bound by the Supreme Court in Ivey. In other words, to confront directly the issue of whether obiter can form binding precedent.

The Court of Appeal accepted that the Supreme Court in Ivey had to a ‘limited extent’ [104] modified the rules of precedent. The limited extent was in a situation where:

'the Supreme Court itself directs that an otherwise binding decision of the Court of Appeal should no longer be followed and proposes an alternative test that it says must be adopted, the Court of Appeal is bound to follow what amounts to a direction from the Supreme Court even though it is strictly obiter.' [104]

The Court of Appeal went on to hold:

'We emphasise that this limited modification is confined to cases in which all the judges in the appeal in question in the Supreme Court agree that to be the effect of the decision. [104]

There appear to be two conditions to things said in dicta gaining binding status. The first is that there needs to be an instruction from the Supreme Court to lower courts to disregard otherwise binding precedent and to apply a new approach. The second is that there needs to be unanimous agreement in the Supreme Court as to the effect of the obiter.

Part of a pattern?

In some ways this case, striking though it is in the way that it overtly recognises that dicta can be binding, is just part of a pattern of judgments taken over recent years, which alters our traditional understanding of the rules of precedent. To give two examples.

Firstly that there are (exceptional) circumstances where a decision of the Privy Council may become binding on other courts even though they do not normally produce binding effects for courts in England and Wales. This can be found in the case of R v James [2006] QB 588 when considering Attorney General for Jersey v Holley [2005] 2 AC 580. There are similarities in the reasoning of this case and Barton, most notably that there was agreement between the Lords of Appeal in Ordinary that the effect of the case was to clarify how English law should be applied in future cases and that a future appeal to the (as it was then) House of Lords would be a ‘foregone conclusion’ [43]

Secondly the Supreme Court can overrule its own decisions by implication and without a need to expressly invoke the Practice Direction of 1966 and through comments made obiter. This was the case in R (Youngsam) v The Parole Board [2017] EWHC 729 (Admin). This case is discussed in greater detail in the textbook.

Significance of the ruling

If we take stock a moment and think about the purpose of the stare decisis doctrine, then it is in large part about securing legal certainty. Of the alternatives, the one adopted by the Court of Appeal in Barton seems most suited to achieving this purpose. The finding that the Supreme Court can make binding and definitive statements on the interpretation and application of English law, even in obiter, is the least disruptive and allows for conflicting approaches to the law to be resolved without needing to wait for a case that allows the Supreme Court to tackle the issue in a ratio.

It would be uncomfortable, to say the least, to know the strongly expressed view of the Supreme Court on the interpretation of the law but to have the lower courts bound by the judgments of other courts. It is, I would contend, better to alter the rules of the game than to frustrate their purpose. Or, as the Court of Appeal put it the rules:

‘must, where circumstances arise, be capable of flexibility to ensure that they do not become self-defeating’ [103].

The common law is adaptable and so it should adapt.

The ruling is undoubtedly significant when viewed from a number of perspectives. Any alteration to the fundamental principles of a fundamental principle of the English Legal System must be seen as important for that reason alone. This particular alteration allows the Supreme Court more opportunity to shape the law in a way that is not wholly determined by the way in which a particular case is to be resolved. This is a welcome development and prevents a situation where the law remains in an uncertain state for want of an appeal with the ‘right’ material facts. It equips the Supreme Court with a new tool, should it wish to use it.

It is unlikely that this tool will be deployed frequently. To do so might create additional uncertainties or invite an approach whereby advocates try to coax out other points not necessary to resolve the case at hand. I would imagine that this will be a rare used tool, deployed as sparingly as the Supreme Court’s ability to depart from its own prior judgment as laid down in the 1966 Practice Direction.

Potential problems with the approach

The approach is not, however, without its problems. It has now blurred the very bright lines between the effect of obiter and ratio. It may mean that principles of law could become binding without the Supreme Court having heard and considered and tested full argument on the issue.

There is also an assumption, although one based on good grounds, that the approach (and its conditions) is acceptable in part because:

‘a further appeal [to the Supreme Court] would be a foregone conclusion, and binding on lower courts.’ [104]

This would explain the requirement for the Supreme Court Justices to have been unanimous in their view on the effect of the dicta before it can become binding. Although pragmatic and based largely on common sense, I am not convinced that it is fully sustainable. In Ivey the Supreme Court sat, as it commonly does, in a panel of 5 (of a possible combination of 12 Justices). I am not convinced that it is inevitable that an appeal would succeed and in drawing on this logic (found in James) the Court of Appeal has drawn the analogy with the case concerning the Privy Council too closely. A differently constituted combination of Justices, or a panel having the benefit of full argument, may well come to a different conclusion.

It is also important to note that ‘agreement’ of all Justices is a necessary condition but it is not clear whether this needs to be an express agreement or whether it can be determined by implication (as was the case in Youngsam when considering whether the Supreme Court could overrule its own decisions by implication).

Having said this, in the worlds of competing uncertainties, the Court of Appeal appears to have hit upon a sensible compromise. It will be interesting to see what use the Supreme Court makes of this ability to overrule by means of obiter comments in the coming years, both in terms of its own case law and in terms of the impact it has on courts lower down the precedential hierarchy.

#precedent #legaleducation #Englishlegalsystem