Human rights on the battlefield – a postscript on ‘dicta’ (and ‘dicta’)

1 July 2010 by Angus McCullough KC

Even if technically obiter, it is suggested that the reasoned decision of the majority of the Supreme Court in Smith is likely to be regarded as binding in practice, if not in strict theory.

This is a postscript to Adam Wagner’s post this morning on the UKSC decision in R (Smith) v. MOD (see our post summarising the decision or read the judgment), commenting on the debate as to the authority of the judgment of the majority on the jurisdictional issue.

It may be worth bearing in mind the weight likely to be accorded by any lower court to the views of the majority of a 9 judge constitution of the Supreme Court.  Even if not technically binding, it is hard to imagine any judge at first instance, or even the Court of Appeal, having the courage to depart from the reasoned views of the majority on this point, unless arising in some unforeseen or unusual factual context.

In a first instance judgment, Munby J in 2005 drew attention to Sir Robert Megarry’s observation that “there are dicta and dicta”.  In relation to two cases which had been cited to him, he stated:

[Both counsel] frankly accepted that neither of these amounted to binding authority, the observations in each case being mere obiter dictaon a point which seems not to have been the subject of any argument. But of course, as Sir Robert Megarry once remarked, there are dicta and dicta, and I cannot ignore the eminence of those whose views I have quoted.

What Megarry J had said in a case reported in 1969 was as follows:

I accept that what Lord Selborne and Lord Cottenham [in a previous decision of the House of Lords]  said must be ranked as dicta. But there are dicta and dicta. Some authorities distinguish between obiter dicta and judicial dicta. The former are mere passing remarks of the judge, whereas the latter consist of considered enunciations of the judge’s opinion of the law upon some point which does not arise for decision on the facts of the case before him, and so is not part of the ratio decidendi.  (Richard West and Partners (Inverness) Ltd. and Another v Dick [1969] 2 Ch. 424

By this benchmark it is suggested that the views of the majority of the Supreme Court, even if technically obiter dicta, are likely to be determinative at least unless or until another case reaches the Supreme Court again on the point.