Judicial Precedent

• judicial precedent

  This is where courts follow previous decisions that have been made in similar circumstances -

  So, if a case comes up and there has been a previous decision on it, the courts will follow the past decision 
• Why is this important?

  Answer - It creates consistency and therefore fairness. Similar cases are treated similarly. 
• Original precedent

  Where a point of law has never been considered or decided upon before, whatever the judge decides to do regarding that point of law will form a new precedent.

  Eg. R v. R (1991) - judge determined that marital rape should be agianst the law - not prevously considered an offence
• Binding Precedent

  Once a decision has been made, then this must be followed

  That is, it is binding
• Doctrine of precedent

  So the operation of precedent rests on three Latin terms:

  1. Stare Decisis
  2. Ratio decidendi
  3. Obiter Dicta
• Stare decisis

  • This means to ‘stand by what has been decided’, the basic principle behind the operation of judicial precedent which is binding.
  • Whilst judges should follow previous decisions, this can only work if the legal reasons for past decisions are known.
  • At the end of a case, there will be a judgement, to explain the legal reasoning behind their decision.
  • Judgements includes two parts  - ratio decidendi and obiter dicta.
• Ratio decidendi

  • Translates to ‘reasons for deciding’, so it is the legal reasoning for their decision.
  • This is the part of the finding that sets the precedent, creating law for future cases to follow.
  • Examples of ratio decidendi that have set precedent in criminal law are:
  • R v Chan-Fook (1994) - ABH can include psychiatric injury but not mere emotions such as fear and panic
• Obiter dica

  • The rest of the judgement is known as obiter dicta, translating to ‘other things said’.
  • This is not binding, as it only consists of speculation from the judge about how their decision might have been if the facts had been different. 
  • For example, Howe and Gotts
• Obiter dica


  R v Howe - ruled that duress could not be a defence to the chrge of murder. In the judgement the Lord aslso commented, as an obiter dica statement, that duress would not be available as a defence to someone charge with attempted murder.
• R v Gotts - obiter dica


  when d charged with attempted murder tried to argue that he could use the defence of duress, the obiter