Judicial Precedent

• Common law system


  Much of our law has been developed over time by courts
• Judicial precedent


  Past decisions of the judges create law for future judges to follow
• Stare decisis


  Stand by what has been decided
• Judicial precedent


  • Like cases are decided alike
  • Higher courts bind lower courts
  • A later court must use the same reasoning as a previous case where the two cases raise the same legal issues
• Ratio decidendi


  Reasons for deciding
• Obiter dicta


  Other things said
• Binding precedent


  Judgments that must be followed
• Persuasive precedent


  Judgments that do not have to be followed, but could provide good law for judges to follow
• Persuasive precedent


  • Courts lower in the hierarchy
  • Decisions of the Privy Council
  • Statements made obiter dicta
  • A dissenting judgment
  • Decisions of other common law jurisdictions
• Original precedent


  Law made entirely by judges
• Original precedent


  • R v R (1991)
  • Donoghue v Stevenson (1932)
  • Gillick v West Norfolk and Wisbech Area Health Authority (1985)
• Avoidance techniques


  • Overrule
  • Reverse
  • Distinguish
• Overrule


  • Candler v Crane Christmas & Co (1951) was overruled in Hedley Byrne v Heller & Partners Ltd (1964)
• Reverse


  • Re Pinochet (1999)
• Distinguish


  • Balfour v Balfour was distinguished in Merritt v Merritt
• Practice Statement


  Allows the House of Lords to depart from their previous decision "where it appears right to do so"
• Practice Statement


  • There is a reluctance to use the power, and as such, it is not often used
  • The power only applies to the Supreme Court and no other court within the hierarchy
  • The constitutional role of the judge if not to make the law, so the power has to be used carefully
  • The phrase 'when it appears right to do so' is very vague and there is little guidance as to what it actually means
• Court of Appeal and precedent

  • Civil Division: Bound by Supreme Court/House of Lords decisions, and its own previous decisions except in limited circumstances laid down in Young v Bristol Aeroplane Co (1944)
  • Criminal Division: Bound by Supreme Court/House of Lords decisions, and its own previous decisions except in limited circumstances laid down in Young v Bristol Aeroplane Co (1944) and where the law was misapplied/misunderstood resulting in a conviction - R v Taylor (1950)
• s2 Human Rights Act 1998 requires all judges, when deciding on Convention points, to 'take account' of the case law of the European Court of Human Rights
• Vinter v UK (2013)


  • The ECHR ruled that whole life orders were in breach of Article 3 ECHR and that a review mechanism should be in place to assess whether a whole life term was still necessary
• The Vinter decision does not stop judges from making any more whole life orders
• Certainty and flexibility in precedent

  • Certainty: Consistency as like cases are decided alike, predictability
  • Flexibility: Judges can distinguish cases, Practice Statement allows law to develop, precedent system enables growth of areas of law with little statutory intervention, objectivity prevents judges exercising personal prejudices
• Advantages of precedent


  • Certainty
  • Flexibility
  • Legal growth
• Disadvantages of precedent


  • Judges drawn from narrow social spectrum
  • Rigid system with lower courts bound by higher courts
  • Judgments can be long and unclear
  • Judges may make illogical distinctions to avoid precedent
  • Law develops in piecemeal, incremental fashion
  • Expensive and time-consuming to get ultimate ruling
  • Cannot initiate legal change
  • Restrictions frustrate some judges
  • Leads to complex and imprecise bodies of law