Judicial Precedent

• Judicial Precedent


  The source of law where past decisions of the judges create law for future judges to follow. It is also known as case law.
• The English legal system is a common law system
• Judicial Precedent


  An earlier event or action that is regarded as an example or guide to be considered in subsequent similar circumstances.
• Basis of the system of precedent


  • Stare Decisis - stand by what has been decided
  • Like cases are decided alike
  • Decisions of higher courts are binding on lower courts
  • A later court must use the same reasoning as a previous case where the two cases raise the same legal issues to ensure a just result
• Creation of new precedent


  1. When a case reaches court and issues raised in the case have never been decided upon before by any other judge, then judges will create a new precedent which future judges will follow

  2. This means that some areas of our law originate entirely from judicial precedent, in other words, law made by judges

  3. This is called original precedent
• Persuasive Precedent


  Judgments which do not HAVE to be followed but could provide good law for judges to follow
• Examples of persuasive precedent

  • Decisions of the Privy Council
  • Statements made obiter dicta
  • Writing of legal academics
  • Decisions of other common law jurisdictions (especially from Australia, Canada and New Zealand)
• What does the Court Hierarchydo?

  • Establishes which decisions are binding on which courts
  • Decisions of higher courts are binding on lower courts
• Court Hierarchy

  • Supreme Court
  • Court of Appeal
  • High Court
  • Crown Court
  • Magistrates' (CRIMINAL)
  • County courts (CIVIL)
  • European Court of Human Rights (ECtHR)
• Supreme Court


  • Replaced the House of Lords as the highest appeal court on civil and criminal matters
  • Binds all other English courts
  • It was bound by its own decisions as the House of Lords until 1966
  • Not bound by its decisions
• Court of Appeal


  • It has criminal and civil divisions that do not bind each other
  • The Court of Appeal civil division is normally bound by its own previous decisions
  • The Criminal Division is not usually bound by its previous decisions due to decisions impacting on a persons liberty
  • The Supreme Court, and the old House of Lords, bind both the criminal and civil divisions of the Court of Appeal
• High Court


  • The High Court consists of the divisional courts: King's Bench Division (criminal appeals and judicial review), Chancery Division, Family Division
  • The High Court is bound by its own decisions
• Crown Court


  • Decisions from the Crown Court do not form binding precedent but can form persuasive precedent
  • They are not bound by their previous decisions
• Magistrates' courts (Criminal) and County courts (Civil)


  • They do not produce precedents
  • They are not bound by their previous decisions
• European Court of Human Rights (ECtHR)


  • Under S2 Human Rights Act 1998, English courts must take into account decisions from European Court of Human Rights (ECtHR) but they are not bound by them
  • This means that they must consider their decisions but do not have to follow them
  • Since Brexit, the Government have clarified that the UK will remain party to the ECtHR
  • This means that, the UK will remain bound by the obligations given by the European Convention on Human Rights and individuals will still be able to challenge the UK at the ECtHR.
• Law reporting


  The process of publishing the decisions of superior courts that set a precedent or change existing law
• Accurate law reporting allows for legal principles to be identified, collated and accessed
• Where law reports can be found


  • Private series of reports such as the 'All England Law' Reports (All ER)
  • Reporting in journals such as the 'New Law Journal'
  • Newspapers such as 'The Times'
  • Online databases such as 'LexisNexis' and 'Westlaw UK'
  • The Internet
• Judicial precedent is the system where judges follow earlier court decisions when making rulings in similar cases
• Principle of judicial precedent


  • Judges are bound to follow the decisions of higher courts in the hierarchy
• The Binding Element

  • Ratio Decidendi - The reason for the decision. This is the binding element of precedent, which must be followed.
  • Obiter Dicta - Things said by the way. This is not binding and is only persuasive.
• Original precedent


  The first court decision that sets a precedent for future cases
• Ratio decidendi


  The binding element in future cases. This is the part of the judgement that future judges (depending on their place in the court hierarchy) have to follow.
• Elements of judicial precedent


  • Ratio decidendi (the legal principle upon which the decision is based)
  • Obiter dicta (incidental comments made by the judge that are not part of the binding precedent)
• The highest appeal court in the UK is the Supreme Court
• Obiter dicta


  Things said "by the way". While never binding, may be very persuasive and is known as the persuasive precedent.
• Divisions of the High Court


  • Civil Division
  • Criminal Division
  • Family Division
• Flexibility and certainty


  • The system (doctrine) of binding precedent creates the certainty needed to allow people to plan and lawyers to advise.
  • It also creates flexibility, as precedent enabled common law to develop.
• Magistrates' courts are bound by the decisions of higher courts in the judicial hierarchy
• Ratio decidendi


  The legal principle upon which the decision in a case is based
• Obiter dicta


  Incidental comments made by the judge that are not part of the binding precedent
• How a precedent can be altered or avoided


  1. Distinguishing - pointing to material differences to justify applying different principles

  2. Departing - a higher court abandoning its previous decision
• Until 1966, the House of Lords was bound by its own previous decisions
• In 1966, the Lord Chancellor issued the Practice Statement allowing the House of Lords to depart from their previous decisions "where it appears right to do so"
• Practice Statement 1966


  • There is a reluctance to use the power
  • The power only applies to the Supreme Court
  • The phrase 'when it appears right to do so' is very vague
• Use of the Practice Statement 1966 in criminal cases


  • R v Caldwell (1981)
  • R v G and another (2003)
  • R v R (1991)
• How the Court of Appeal is bound by precedent


  1. Civil Division: Bound by Supreme Court/House of Lords decisions and its own previous decisions, except in limited circumstances

  2. Criminal Division: Bound by Supreme Court/House of Lords decisions and its own previous decisions, except in limited circumstances and where the law was misapplied/misunderstood resulting in a conviction
• Supreme Court


  • Established by the Constitutional Reform Act 2005 to replace the House of Lords
  • Highest appeal court in the UK
  • Took over the Privy Council's role of hearing cases concerned with devolution
• Privy Council


  • Final appeal court for the Commonwealth countries other than the UK
  • Decisions have strong persuasive authority but do not bind English courts
• The UK is part of the Commonwealth countries