Judicial Precedent

• Stare Decisis

  "To stand by what is decided" = like cases treated alike.

  The principle that a court should follow previous precedents and not overturn past decisions.
• Binding Precedent

  A decision made on a point of law by senior courts must be followed by lower courts when a case on the same point of law arises.

  (E.g.) The privy council in Grant v AKM were bound to follow HOL's precedent in Donoghue v Stevenson
• 3 parts to a judge's judgement:

  1. Verdict
  2. Ratio Decidendi
  3. Obiter Dicta
• Ratio Decidendi 


  "The reason for the decision" = the binding precedent.

  (E.g.) R v Howe: duress isn't a defence to murder
• Obiter Dicta


  "Other things said" = persuasive precedent.

  (E.g.) R v Howe: duress isn't a defence for attempted murder too (followed in R v Gotts)
• 3 types of precedent:

  1. Binding precedent
  2. Persuasive precedent
  3. Original precedent
• Original Precedent 


  A decision on a point of law that's never been considered before. The new decision becomes the precedent.

  (E.g.) Donoghue v Stevenson created the "neighbour principle" which is the foundation of modern negligence law.
• Persuasive Precedent 


  Any precedent that the court is not bound to follow, but can.

  (E.g.) R v R: Found guilty of marital rape so he appealed to HoL, but they were persuaded by the judgement of the CoA.
• Donoghue v Stevenson [1932]


  Original Precedent which founded modern negligence law.

  Ratio: A manufacturer owes a duty of care to the ultimate consumer of their product.

  Courts bound: CoA, divisional courts, high court, county court
• Grant v Australian Knitting Mills [1936]


  The decision that had to be made was that AKM owed Grant a duty of care as he was the ultimate consumer. CoA had to follow the precedent made in Donoghue v Stevenson because it's bound by the supreme court.
• R v R [1991]


  The HoL wasn't forced to follow CoA's judgement as they are higher in the hierarchy but they were persuaded and chose to follow it.
• Sources of persuasive precedent:

  • Decision from lower courts
  • Obiter Dicta
  • Judicial Committee of the Privy Council
  • Dissenting Judgements/Opinions
  • Decisions from other countries
• Source: Decision from lower courts 


  R v R [1991]. Convicted in crown for marital rape, which wasn't a crime. CoA dismissed his appeal. HoL was persuaded by arguments made in the CoA and confirmed their decision.
• Source: Obita Dicta 


  • R v Howe. Lord Griffiths said that attempted murder requires a worse Mens Rea than murder, therefore duress for attempted murder shouldn't be allowed either.
  • R v Gotts: Obiter dicta followed and rejected Ds defence of duress.
• Source: Dissenting judgements 


  Dissenter's judgements not ratio decidendi but still treated with respect and possibly considered.

  • Rose and Frank v Crompton Bros:
  • Lord Atkin dissented on a legal issue. HoL followed his dissent upon appeal.
• Source: The Judicial Committee of the Privy Council 


  The PC acts as a final court of appeal for common wealth countries such as Canada, Jamaica, etc.

  JCPC not apart of UK hierarchy so decisions not binding, but still respected.

  • The Wagon Mound [1961] JCPC created the test for remoteness in negligence which is an important principle still used today.
• Source: Decisions from other countries:


  • R v Sloan (Canada): Charged with robbery with possession of an imitation firearm. Courts ruled "a man cannot be in possession of his own finger"
  • R v Bentham (UK): D was found guilty of possession of an imitation firearm. Conviction quashed by HoL.
• Ways of avoiding precedent:

  1. Overruling
  2. Distinguishing
  3. Reversing
• Overruling 


  1. A decision is made in an old case.
  2. New case on same issue gets to higher court.
  3. If court thinks previous decision is wrong, Case 2 replaces Case 1.
  4. Only 1 precedent remains.
• Anderton v Ryan [1985]


  Supreme Court ruled "you cannot be convicted of attempting to do something impossible."

  • Overruled by R v Shivpuri [1986]
• R v Shivpuri [1986]


  Supreme Court ruled "the decision in Anderton v Ryan was a serious error. A person can be convicted of attempting to commit a crime even if the true facts are not as he believed."

  • Overruled Anderton v Ryan [1985]
  • First criminal use of the 1966 Practice Statement.
• Pepper v Hart [1993]


  Overruled Davis v Johnson [1978] on when judges are able to use Hansard when interpreting a statute.
• Distinguishing 


  1. A decision is made in an old case.
  2. New case on same point of law.
  3. If there is a difference in material facts, Case 2 doesn't have to follow Case 1.
  4. New individual precedent set.
  5. 2 precedents on same point of law.
  6. Any court can use distinguishing.
• Balfour v Balfour [1919]


  Court of Appeal: this was not a legally enforceable contract. This was a promise and:

  1. was verbal, not written down and signed
  2. was for a small amount of money every month
  3. the couple weren't divorced or properly separated
• Merrit v Merrit [1970]


  Court of Appeal: this was a legally enforceable contract. Distinguished from Balfour because:

  1. Agreement was written and signed
  2. Agreement was for interest in property, not just money
  3. The couple were separated
• R v Jordan [1956]


  • D stabs V
  • Palpably wrong treatment
  • Death caused by medical treatment

  chain is broken so D is not guilty.

  Same point of law as R v Smith [1959]
• R v Smith [1959] 


  • D stabs V
  • Doctor negligent but trying to save Vs life
  • Death caused by murder

  chain is not broken, so D is still guilty.

  Distinguished from R v Jordan [1956]
• Reversing


  1. Case 1 in High Court sets precedent
  2. Appeal to CoA who changes decision = decision reversed
  3. Supreme Court can reverse decision again!
• R v Hasan [2005]


  • Court of Appeal: the duress is not self-induced if D doesn't know what crime he will be forced to commit.
  • Supreme Court: Duress is self-induced whenever D knows he may be threatened. Knowledge of the specific crime is not required.
• The Supreme Court and its own precedents

  Until 60 years ago, decisions of the HoL were binding on itself. (London Street Tramways v London City Council [1898]), and all lower courts.

  This changed in 1966 following the Practice Statement.
• Practice Statement (Judicial Precedent) [1966]


  PRO: Provides certainty

  CON: Too rigid = injustice

  SOLUTION TO RIGIDITY: Follow decisions normally but with some modification

  1. Supreme Court can use it "when it appears right to do so."
  2. But make sure to consider the historic foundation
  3. Criminal law requires certainty because a person's freedom could be at risk if the law is misapplied.
• British Railway Board v Herrington [1972]


  D owed a duty of common humanity to trespassers. Overruled decision in Addie v Dumbreck. First major use of the 1966 Practice Statement.
• Jones v Secretary of State for Social Services [1972]


  Judges refused to overrule Re: Dowling even though 4 out of 7 judges thought the decision was wrong, to uphold certainty.
• The Court of Appeal and its own decisions

  • Bound by the Supreme Court
  • 2 divisions: civil and criminal
  • Bound by its own past decisions generally.
  • Exceptions developed in Young's Case.
• Young v Bristol Aeroplanes [1944]


  Court of Appeal is bound by itself except when:

  1. Conflicting decisions
  2. UKSC (supreme court) decisions
  3. Per incuriam = by error. Where they failed to consider a relevant act.
• EWCA Criminal Division

  Court of Appeal can overrule itself with a 4th exception: “the law has been misapplied or misunderstood“ as in R v Taylor.
• R v Taylor 


  The EWCA criminal division can overrule itself when the law has been “misapplied” or “misunderstood“ because of liberty of the individual.
• Stare decisis et non quieta movere


  stand by what is decided and do not disturb the calm
• R v Howe [1987]


  Duress is not a defence to murder
• R v Gotts [1992]


  House of Lords followed the obiter dicta in R v Howe and, in their ratio decidendi, ruled that duress is not a defence to attempted murder.