judicial precedent

• Judicial precedent


  The source of law where past decisions of the judges create law for future judges to follow. Also known as case law.
• English and Welsh legal system

  • Common law system (murder is a common law offence)
  • Much of our law has been developed over time by courts through different cases coming through judges
• Development of law through judicial precedent

  Past decisions of judges create law for future judges to follow
• Reasons for judicial precedent

  • Certainty and consistency
  • Time saving
  • Flexibility
  • Judges are legal experts
  • Development of the law
• Stare Decisis

  Stand by what has been decided
• stare decisis 


  • Like cases are decided alike
  • A later court must use the same reasoning as a previous case where the two cases raise the same legal issues
• Parts of precedent- stare decisi

  • higher courts bind lower courts
  • Like cases are decided alike
• stare decisis

  • higher courts Bind lower courts
  • Decisions of higher courts are binding on lower courts
• Ratio Decidendi

  Reasons for deciding, the binding precedent
• Ratio Decidendi

  • Based on facts of the case
  • Main part of the judgement
  • The part of judgement that future judges have to follow due to it being binding
• Obiter Dicta

  Other things said, the persuasive precedent
• Obiter Dicta

  • Anything not related to the case but feels is important
  • Part of judgement that doesn't have to be followed by future judges as its persuasive
• two parts of the judgement is obiter dicta and ratio decidendi
• Judicial precedent

  The legal principle by which judges are bound to follow the decisions of higher courts
• R v Howe 1987


  • Involved someone who killed another whilst under duress
  • Supreme court ruled that duress couldn't be a defence to a charge of murder (ratio)
  • Court also stated that it couldn't be used as a defence to a charge of attempted murder either (obiter)
• R v Gotts 1992


  • Involved someone who attempted to kill another whilst under duress
  • Obiter statement in R v Howe was followed by the Court of Appeal in this case
  • This means the obiter in the R v Howe case had become Ratio
• Court hierarchy

  • Supreme court
  • Court of appeal
  • High court
  • Crown court
  • Magistrates court
• Higher courts bind lower courts
• Types of precedent

  • Original
  • Binding
  • Persuasive
• Original precedent

  When the point of law has not been decided before
• Binding precedent

  When the decision was made by a higher court and all courts below it must follow it in cases that are sufficiently similar
• Persuasive precedent

  Where a judge does not have to follow the past decision but might be persuaded to do so
• Original precedent

  Judges are making law in an area where the law didn't exist before
• Some areas of our law originate entirely from judicial precedent, in other words, laws made by judges
• Declaration theory

  Basis for original precedent
• Original precedent

  • R v R 1991 - first time marital rape recognised as an offence
  • Donoghue v Stevenson 1932 - court held no duty of care between manufacturer and consumer, later overturned by Supreme Court
• Persuasive precedent


  Judgements which don't have to be followed, but could provide good law for judges to follow
• Sources of persuasive precedent

  • Courts lower in the hierarchy
  • Decisions made in emergency situations
  • Statements made in obiter dicta
• Persuasive precedent from courts lower in the hierarchy

  • R v R 1991 - Supreme Court agreed with Court of Appeal decision that a man could be guilty of raping his wife
• Persuasive precedent from decisions made in emergency situations

  • Re A 2000 Conjoined Twins - doctors separated twins without parents' permission to save them, relied on defence of necessity
• Persuasive precedent from statements made in obiter dicta

  • R v Howe 1987 - Supreme Court ruled duress couldn't be used as defence for murder (ratio), couldn't be used for attempted murder (obiter)
  • R v Gotts 1992 - Court of Appeal followed obiter statement from R v Howe
• Avoidance techniques

  Ways judges try to avoid following precedent
• Avoidance techniques

  • Overrule
  • Reverse
  • Distinguish
• Overrule

  1. Higher courts can overrule lower courts

  2. E.g. Candler V Crane Christmas & Co 1951 was overruled by Hedley Byrne V Heller & Partners Ltd 1964
• Reverse

  1. On appeal a higher court may change the decision of a lower court of the same case

  2. E.g. Donoghue V Stevenson, the supreme court reversed the decision of the court of appeal
• Distinguish

  1. Where a lower court is able to point to material differences that justify the application of different principles

  2. E.g. Balfour V Balfour was distinguished in Merritt V Merritt
• Until 1966, the supreme court was bound by its own previous decisions as held in London Tramways V LCC 1898
• Previously, the supreme court was only allowed to depart from their previous decisions when law was made 'per incuriam' (in error)
• The problem with the previous rule was that the law becomes outdated and too rigid
• The Lord Chancellor (Lord Gardener) issued the practice statement

  1966