Judicial Precedent

• Doctrine of precedent- following the decisions of previous cases, especially of higher courts.
• original precedent- a decision on a point of law that has never been decided before.
• binding precedent - a decision in an earlier case which must be followed in later cases.
• persuasive precedent- a decision which doesn’t have to be followed by later cases but a judge may decide to follow.
• Hierarchy of courts: Civil

  Supreme Court

  Court of Appeal

  Divisional Courts

  High Court

  County Court

  Magistrates Court
• Hierarchy of courts: Criminal

  Supreme Court

  Court Of Appeal

  Queen’s Bench Divisional Court

  Crown Court

  Magistrates Court
• hierarchy of courts:

  every court is bound to follow any decision made by a court above it in the hierarchy.

  2 exceptions:

  1. when there is a decision of the Court Of Justice Of the EU when the English Courts have to follow that.
  2. in cases involving human rights.
• Practice Statement 1966: Allowed the House of Lords to change the law if they believed that an earlier case was wrongly decided. When ‘it appears right to do so’
• Practice statement in use:

  Criminal- R V Shivpuri

  Overruled the law that said you couldn’t be guilty of attempting the impossible.
• Court of Appeal:

  • 2 divisions of this court- Civil Division and Criminal Division
• Decisions of courts above Court of Appeal:

  • both divisions are bound by decisions of Court of Justice of European Union and the Supreme Court.
• Court of appeal and its own decisions:

  • first rule is that decisions by one division will not bind the other division however within each division decisions re normally binding especially within Civil Division.
  • This rule comes in Young V Bristol Aeroplane and only exceptions allowed by that case are;
  • where there are conflicting decisions in past Court of Appeal cases the court can choose which to follow
  • where a Supreme Court decisions overrules Court of Appeal decision they must follow that
  • where decision was made per incuriam, carelessly or by mistake
• Court of Appeal (criminal division);

  • using exceptions in Youngs case but can also refuse following a past decision if the law has been misapplied or misunderstood. This is because people's liberties are involved (R V Gould)
• Stare decisis- 'stand by what has been decided and do not unsettle the established' It is the foundation of judicial precedent
• Ratio decidendi- the reason for the decision, forms precedent for future cases.
• Obiter dicta- 'other things said' so it is all the rest of the judgement and judges in future cases dont have to follow it.

  • R V Howe
• There must be an accurate record of previous decisions for judicial precedent. Today there are law reports where the citations show which court heard the case;

  • UKSC- Supreme Court case
  • UKHL- House of Lords case
• operation of precedent:

  • following- judge must follow a previous precedent if relevant in present case
  • overruling- a court in a later case states a legal rule in an earlier case is wrong
  • Distinguishing- a method by which a judge avoids having to follow what would otherwise be a binding precedent (Balfour V Balfour)
• Precedent and Acts of Parliament:

  • when a new act of parliament is assed which contradicts a previously decided case, that case decision will cease to exist
  • such as when Law Reform Act 1996 was passed it overruled the year and a day rule
• Advantage of precedent:

  • certainty- lawyers can advise more accurately
  • consistency and fairness
  • precision- gradually builds up and becomes precise
  • flexibility- Practice Statement
  • time saving
• Disadvantages of precedent:

  • rigidity
  • complexity- hard to extract the ratio decidendi
  • illogical distinctions
  • slowness of growth