Judicial precedent

• What is judicial precedent?


  the idea that judges will follow the decisions made and rules outlined in previous cases
• stare decisis


  “Let the decision stand“ -> courts must follow the decisions of all the courts above them
• What is a judgement?


  the decision made by the court
• Ratio decidendi:

  • Literally “reason for deciding”
  • Binding precedent
  • MUST be followed in future cases
  • E.g. Donoghue v Stevenson -> the ratio was that manufacturers have a duty of care to consumers
• Obiter dicta:

  • literally “other things said“
  • Persuasive precedent
  • MAY be followed by future cases
  • E.g. Hill v Baxter -> examples given about the hypothetical swarm of bees
• Binding precedent


  A precedent that must be followed by that court and all lower courts
• persuasive precedent 


  a precedent that does not have to be followed but may be if the judge chooses
• the practice statement 1966


  Allowed the highest court (the HoL at the time) to depart from its own previous decisions
• The operation of judicial precedent:


  when faced with a precedent set in an earlier case, judges have number of options, the precedent can be:

  • Followed
  • Overruled
  • distinguished
• Follow

  Explanation:

  • The judge applies the same principle of law to the current case
  • If the decision is by a court above or on the same level, precedent must be followed

  Example:

  • Michael v CC south Wales followed Hill v CC West Yorkshire
• Overrule 


  Explanation:

  • The court in a later case considers the earlier ruling to be wrong
  • Overruling can occur when a higher court overrules a decision made by a lower court
  • E.g. SC can overrule CofA or itself using the practise statement

  Example:

  R v Jogee overruled R v Powel and R v England
• • Distinguished

  Explanation:

  • A judge avoids following a precedent
  • If a judge finds the material facts of the case are sufficiently different form the case that has set the precedent then a distinction can be drawn between the two and hey are not bound by the previous case

  Example:

  • Merritt v Merritt distinguished from Balfour v Balfour
• Advantages of Judicial precedent (1)


  • Certainty - it allows the law to be predictable
  • Consistency - like cases treated alike prompting a sense of justice
  • Fairness - certainty and consistency allow parties involved in cases to see how a decision was arrived at and that it is fair in the circumstances
  • Precision - the exact details of the law are known by all parties
• Advantages of judicial precedent (2)


  • Flexibility - bad precedent can be avoided by using the practice statement
  • Time Saving - the predictability makes ADR more likely as people will resolve disputes outside court using previous court decisions -> saves time and money
  • Details can be added onto statutory provision - Clinton which clarified the position of sexual infidelity in loss of control cases
  • The law can evolve to meet a changing society and changing attitudes ie. R v R when it became an offence to rape within a marriage
• Disadvantages of Judicial precedent (1)


  • Rigidity - binding decision can restrict decisions made in the interest of individual justice in cases
  • Complexity - judgements are ver long and difficult to read. It is not always easy to identify the ratio decidendi and the obiter dicta
  • Illogical distractions - some cases are distinguished on quite minor and sometimes controversial points ie. R v Brown and R v Wilson
• Disadvantages of judicial Precedent (2)


  • Slowness of growth - the development of precedent relies on waiting for the right case to come along to develop the law further
  • A bad precedent needs another case or Act of parliament to come along to resolve it
  • Not a democratic source of law - unelected Judges are making and developing key legal principles