Judicial precedent

• Judicial precedent

  Application of the principle of stare decisis - to stand by the decided
• Judicial precedent

  • Inferior courts are bound to apply the legal principles set down by superior courts in earlier cases
  • Provides consistency and predictability in the law
  • Can only be applied when the second case is fairly similar to the facts of the original case
  • Requires a clear hierarchy of courts and accurate judicial reports
• Judicial precedent is important to give the system a sense of justice and make it acceptable to the public
• Judicial precedent

  • It is practical, based on real facts, unlike legislation
  • It is detailed, hence there is a wealth of cases to refer to
• Rules of precedent


  • House of Lords binds all lower courts but is not bound by its own decision
  • Court of Appeal binds all lower courts and itself, although the Court of Appeal (Criminal Division) does not bind the Court of Appeal (Civil Division) or vice versa
  • High Court binds all lower Courts but not itself
  • All other court decisions have persuasive precedent but are not binding
• Ratio decidendi


  The legal reason or principal which lays behind the decision and provides the precedent for judges to follow in future cases
• Obiter dicta

  Comments made by a judge that are relevant to the case but not essential to deciding it, and do not create a precedent, but may be persuasive
• The Supreme Court has been contradicting itself in terms of its judgment on the same topic
• Ratio decidendi have a binding effect, while obiter dicta are of persuasive effect
• Stare decisis

  The English system of precedent based on the Latin maxim "stand by what has been decided and do not unsettle the established"
• Precedents can only operate if the legal reasons for past decisions are known, so judgements include the legal reasoning behind the decision
• Doctrine of stare decisis

  • Helps ensure uniform justice and continuity in court decisions
  • Helps judges and attorneys in the consistent application of the law
  • Prevents a single judge in a lower court from issuing decisions that are out of line with higher courts
  • Makes the legal and judicial systems more efficient by avoiding the need to re-examine the same legal issue with every similar case
• Original precedent


  A point of law that has never been decided before, so the judge's decision forms a new precedent for later cases to follow
• In the case of Donoghue v Stephenson, the ratio decidendi has been interpreted in different ways by different judges
• Binding precedent

  A precedent from an earlier case that must be followed, even if the judge in the later case disagrees with the legal reasoning, as long as the facts are sufficiently similar
• Persuasive precedent


  A precedent that is not binding, but a judge may consider and decide to follow if persuaded it is the correct principle
• Sources of persuasive precedent

  • Courts lower in the hierarchy
  • Privy Council decisions
  • Obiter dicta statements, especially from the House of Lords
• Operation of the doctrine of precedent


  • Every court is bound by a court above it in the hierarchy
  • Appellate courts are generally bound by their own previous decisions
• Distinguishing


  When a judge decides the material facts of the case are sufficiently different from the precedent case, so they are not bound by the precedent
• Overruling


  When a court in a later case states that the legal rule decided in an earlier case has been wrongly decided
• Reversing


  When a higher court overturns the decision of a lower court in the same case
• Until 1898, the House of Lords had the power to overrule its own previous decisions
• In 1898, the House of Lords decided that certainty in the law was more important than the possibility of individual hardship caused by having to follow a past decision
• In 1966, the Lord Chancellor issued a Practice Statement giving the House of Lords the power to overrule its own previous decisions
• Exceptions where the Court of Appeal can overturn its own previous decisions

  • Where previous decisions of the court of appeal conflict
  • Where a decision which has not been expressly overruled cannot stand with a subsequent decision of the House of Lords
  • Where a decision has been made 'per incuriam' (in error)
• The development of the law on intention in murder cases shows how precedent can lead to changes over time
• Advantages of precedent

  • Provides certainty in the law
  • Judges have clear cases to follow
  • Lower courts follow higher courts
  • Leads to an orderly development of the law
  • Case law is derived from real situations, making it viable and intelligible
  • Allows the law to develop, with flexibility especially since 1966
• The Court of Appeal, in using the phrase substantial risk had blurred the dividing line between murder and manslaughter by blurring the distinction between intention and recklessness
• Donoghue drank a bottle of ginger beer, manufactured by Stevenson, which contained the decomposed remains of a snail
• Donoghue suffered from shock and severe gastro enteritis as a result
• Donoghue's case rested solely on the ground of a tort based not on fraud but on negligence
• The English and the Scots law on the subject are identical
• Knowledge of the existence of the defect causing damage is not an essential element in a true case of negligence
• In the American case of Thomas v. Winchester, a chemist carelessly issued a bottle containing belladonna instead of extract of dandelion, and was held responsible
• In Macpherson v. Buick Motor Co., the plaintiff who had purchased a motor car from a retailer was injured due to a defect in the car's construction, and was held entitled to recover damages from the manufacturer
• The law takes no cognisance of carelessness in the abstract, it concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage
• A person who for gain engages in the business of manufacturing articles of food and drink intended for consumption by members of the public in the form in which he issues them is under a duty to take care in the manufacture of these articles
• The defendant married his wife in 1984, but later forced his way into her parents' house and attempted to have sexual intercourse with her, assaulting her in the process
• The defendant was charged with rape and assault occasioning actual bodily harm, and the judge rejected his submission that by virtue of section 1(1) of the Sexual Offences (Amendment) Act 1976 the offence of rape was one which was not known to the law where the defendant was the husband of the alleged victim
• The Court of Appeal (Criminal Division) dismissed the defendant's appeal against his conviction of attempted rape