- The system of Judical precedent is best described as treating like cases alike.
- It is a source of law whereby past decisions create law for future cases to follow.
- This system exists to ensure certainty, uniformality and consistency of decision-making as well as fairness.
- In English law precedents of an appropriate authority not only guides decisisons in later cases but actually bind judges in such cases, within the court hierachy.
- This means that a judge in an inferior court must obey the decision of a higher court on the same point of law.
- Any system of precedent requires a effective method of law reporting in order for judgements to be recorded and later researched.
- The system of precedent also demands a well-defined court hierachy.
Original and Declaratory Precedent.
- The system provides scope for the higher members of the judicary to develop existing rules into a new form and thereby create common law to be followed in future cases.
- This is known as original precedent where the point of law is decided for the first time as it didnt exist before.
- Donoghue v Stevenson (1982), Ryland v Fletcher (1868).
- When an original precedent is extended or modified in some way this is known as a declaratory precedent. Read v Lyons (1997) the court considered the rule made in Ryland v Fletcher and extended it further by providing a legal definition of 'escape' within the context of the tort of strict liability.
- When a precedent is set, the judgement will consist in theory of two parts.
The Ratio Decidendi (binding).
- Precedent can only opertate if the legal reasons for past decisions are known, therefore at the end of a casether will be a judgement.
- A judgement is a speech made by the judge giving the decision and more importantly explaining the reasons for the decisison.
- In a judgement the judge is likely to give a summary of the fact of the case, review the arguments put to him by the advocates in the case, and then explain the principles of law he is using to come to the decision.
- These principles are the important part of the judgement and are known as the ratio decidendi which means the reaosn for deciding.
- This is what creates a precedent for judges to follow in future cases.
Obiter dicta. (persuasive)
- The remainder of the judgement is called obiter dicta (other things said) and judges in future cases do not have to follow it.
- Sometimes a judge will speculate on what his decision would have been if the facts of the case had been different.
- This hypothetical situation is part of the obiter dicta and the legal reasoning put forward may be considered in future cases, although, as with all obiter statements, it is not binding precedent.
- A major problem when looking at a past judgement is to divide the ratio decidendi fro the obiter dicta, as the judgement is usually in a continuous form, without any headings specifying what is meant to be part of the ratio decidendi and what is not.
The Doctrine of precedent in the court hierachy.
- The doctrine of precedent depends for its effective operation on the on the fact that each court stands in a definite position in relation to eery other court.
- Every court is bound to follow and decision made by a court above it in the hierachy.
- In general, appellate (appeal) courts are bound by their own previous decisisons.
The European court of Justice
- The ECJ's decisions bind all Britih courts on matters of European Union Law although it is much more flexible than British Courts in that it doe not bind itelf.
The house of lords.
- The decision of the house of lords bind all courts within the domestic hierachy, both civil and criminal. Until the practice statement 1996 this court was bound to follow its own previous decisions.
- The practice statement issued by Lord Gardiner L.C. altered this and most importantly, introduced a degree of felxibility and further scope for judge made law.
The court of appeal (CIVIL DIVISION)
This court is clearly bound by the house of lords decisions. Further, the houe of Lords has made clear that the Civil Division is bound by its own previous decisions. Except in the limited circumstances : Where there are two previously conflicting Court of Appeal decisisons, Where a previous Court of Appeal decision has been over turned by a later House of Lord decision and where the previous decision was wrongly decided.
- Lord Denning led a Campaign to have this rule relaxed, he tried to argue that the same rule as stated in the practice statement should apply to the court of Appeal, namely that where it appeared 'right to do so' the court could depart from a previous decision.
- Thus the theoretical role of precedent, to provide certainty in the legal system is re-emphasised here.
The court of Appeal (CRIMINAL DIVISION)
- The same rules apply to the criminal division, except that it need not follow its own previous decisions where this would cause injustice to the person appealing. The reason for this is that where human freedom is at stake, the need for justice exceeds the desire for certainty.
The High Court - The appeal courts of the high court are subject to the same rule as the court of Appeal. The high court judges at firt instance are not bound by decisions of other High court judges but these are of persuasive authority.
Advanatges and Disadvanatges of Judical precedent.
- It create certainty in the law.
- Lawyers can advise on the probable outcome of a case.
- It prevents unnecessary litigation.
- The law is consistent and fair.
- The practice statement allows cautious changes in the law as necessary.
- Such changes are made by the most senior judges.
- Techniques such as distinguishing allows judges in practice to avoid unpopular decisions.
- It allows judges at the top of the hierachy to overstep their constitutional role.
- Such judicial 'law making' operates retrospectively on the parties to the case.
- Limited use of the practice statement can mean that the law becomes stagnant.