Judicial Precedent refers to the way in which the law is made and amended through the decisions of judges.
Stare Decisis - Stand by the Decision
The doctrine of judicial precedent is based on the principle of stare decisis, this means that like cases should be treated alike. The general rule is that all courts are bound to follow decisions made by courts higher than themselves in the hierarchy and appellate courts are usually bound by their own previous decisions.
Where there is no previous judicial decision on a point of law before the court then the decision made in that case on that point of law will be original precedent. The way in which a judge will come to their decision in this situation is to look at cases which are similar to the one in question. These cases are not binding on the court but they are persuasive.
Binding and Pursuasive Precedent
A previous decision will be binding on the court if:
- The legal point involved in the case is the same as the one in the previous decision
- The facts of the current case are similar to the previous case (they do not have to be identical)
- The earlier decision was made by a court higher in the hierarchy, or at the same level as the current court (and it is bound by its own previous decisions)
Only the ratio decidendi of the earlier case is binding. A previous decision will only be persuasive on the court where:
- The dissenting judgment in a House of Lords decision
- Ratios from decision in courts lower in the hierarchy
- Decision from courts in other jurisdictions, i.e. Australia
- Obiter dicta statements by a court higher in the hierarchy than the current court. For example in R v Gotts (1992) where the Court of Appeal followed an obiter dicta statement by the House of Lords in R v Howe (1987) on the availability of the defence of duress when charged with attempted murder.
Ratio Decidendi and Obiter Dicta
A judgment by the court is split into three parts:
- the material facts
- the principle of law
- the decision of the court
Only the principles of law that are relevant to the decision are the ratio decidendi of the judgment. Any other statements of law that are not relevant to the decision are obiter dicta.
Distinguishing is a 'tool' used by judges to avoid following a previous decision which they would otherwise be bound to follow. An advantage of distinguishing is that it helps to keep judicial precedent and the law flexible.
Where a judge considers the material facts of the present case to be sufficiently different from the earlier case they may distinguish the two cases and refuse to follow the earlier decision. For an example of distinguishing in practice see Merritt v Merritt (1971) and Balfour v Balfour (1919).
Judicial Law Making: Many areas of our law have been developed by the decisions of judges, for example, the tort of negligence. The speed at which the law develops can depend on whether the judge is an active or passive law maker.
Active law making can be seen in the case of R v R (1991) where the House of Lords ruled that **** within marriage was a criminal offence. An example of passive law making is seen in the case of C v DPP (1995) where the House of Lords refused to change the presumption about criminal responsibility of children under the age of 14, feeling that it was the job of Parliament to make such major changes to our law.
Certainty - It creates certainty in the law and means solicitors and barristers can advise their clients on the probable outcome of their case.
Fairness - Similar cases are treated in a similar way, this is in the interests of justice and fairness.
Time Saving - It saves court time as for most situations there is already an existing solution.
Law Development - it allows the law to develop alongside society R v R (1991) - this case overturned a centuries old legal principle that a man could not **** his wife.
Rigidity - The system is too rigid and does not allow the law to develop enough.
Injustice - The strict rules of judicial precedent can create injustice in individual cases
Slow Development - The law is slow to develop under the system of judicial precedent. The law cannot be changed until a case on a particular point of law comes before one of the higher appellate courts.
Confusion - Hundreds of cases are reported each year, making it hard to find the relevant precedent which should be followed.
Complexity - The law is too complex with thousands of fine distinctions.