Law- Judicial Precedent

Judicial precedent refers to the source of law where the past decisions of judges create law for future judges to follow in similar cases. This source of law is known as case law or common law. It is based on the Latin saying ‘stare decisis’ (stand by the decisions of past cases). This supports the idea of fairness and provides certainty in the law. 

A binding precedent is a statement of law from an earlier case which must be followed even if the judge in the current case does not agree with the law. A binding precedent is only created when the facts (events) of the second case are sufficiently similar to the precedent and the decision was made by a court which is senior to (or in some cases the same level as) the court hearing the current case. 

 Original Precedent

If the point of law in a case has never been decided before, then whatever the court decides will form an original precedent. An example of an original precedent is the ratio decidendi of DONOGHUE v STEVENSON (1932). 

In order to operate properly, precedent needs a system of reporting the cases that come before the courts so that both lawyers and judges in later cases can refer back to the relevant statements of law. A system of law reporting is needed both to publicise a judgment and to ensure that there is an accurate and authorised record of the reasons for decisions. Law reports are written by specialist lawyers and examples of law reports include the All England Law Reports and LexisNexis

2. To operate, precedent needs a method of identifying the parts of a judgment which bind a future judge from the other parts which need not be followed. 

a. In a judgment, the judge will explain the principles of law he is using to decide why a particular party won. These principles are the important part of the judgment and are known as the ratio decidendi (the vital ‘reason for deciding’). It is the ratio that creates a binding precedent for judges to follow in later similar cases. An example of a ratio is the binding principle in R v HOWE (1987) that duress could not be a defence to the crime of murder.

b. All the other points of law in the judgment which are not ratio are called obiter dicta (‘other things said’). These comments are not vital to the outcome of the case and are often discussions of hypothetical situations. For example, the judge might say ‘Smith did this, but if she had done that, my decision would have been …’ None of the obiter forms part of the case law, it is not binding, though judges in later similar cases may be persuaded to follow it in reaching a decision. An example of obiter dicta is the comment in R v HOWE (1987) that duress could not be a defence to the crime of attempted murder. 

3. Finally, there needs to be a clear hierarchy of courts so that a judge knows who he or she should follow. Usually every court is bound to follow a relevant decision made by a court above it in the hierarchy and appellate courts (those courts which hear appeals) are bound by their own past decisions.

The most senior national court is the Supreme Court and its decisions must be followed by all other courts in the English legal system. The Supreme Court is also usually bound to follow its own past decisions. 

There are two divisions to the Court of Appeal: the Civil Division (which hears appeals in civil cases) and the Criminal Division (which hears appeals in criminal cases). Both divisions of the Court of Appeal are bound by previous decisions of the Supreme Court. Each division of the Court of Appeal is also usually bound to follow its own past decisions

The High Court is bound by decisions of all the courts above it in the hierarchy and in turn it binds the lower courts. High Court Judges do not have to follow each other’s decisions but will usually do so. The Crown Court, County Court and Magistrates’ Court must follow decisions by all higher courts. They do not usually create precedents themselves. 

1. A persuasive precedent is one which the court will consider and may be persuaded by, but which does not have to be followed. 

2. Persuasive precedent comes from a number of sources, including:

a. Courts lower in the hierarchy than the court hearing the appeal. An example is R v R (1991) where the House of Lords were persuaded to follow the same reasoning as the Court of Appeal in deciding that a man could be guilty of ****** his wife.

b. Statements made obiter dicta. An example of obiter dicta is the comment in R v HOWE (1987) that duress could not be a defence to the crime of attempted murder. This persuasive precedent was followed in the later case of R v GOTTS (1992). 

 c. When a case has been decided by a majority of judges, for example, 2:1 in the Court of Appeal, the judge who disagreed will have explained his or her reasons. This is a dissenting judgment and another example of a persuasive precedent. 

To follow a precedent is to apply a legal principle from an earlier case to a present case because the material facts are the same and the precedent was set by a higher court or was a precedent set by the same court. There are various methods by which the courts can avoid following a binding precedent so that case law can be developed and injustice in a case avoided.

Overruling is where a precedent set by a lower court is said by a higher court hearing a separate case to have been wrong. The earlier case ceases to be a precedent for any point of law. Also, some appellate courts can overrule their own precedents in certain circumstances.  

The Supreme Court can overrule any decisions made by lower courts in the hierarchy. Also, the Supreme Court can overrule its own precedents ‘when it appears right to do so’, as provided for in the Practice Statement of 1966. In HERRINGTON v BRITISH RAILWAYS BOARD a boy trespassed on a railway line and was severely injured. He had been able to get on to the railway line because the fencing hadn't been maintained properly. An earlier case of ADDIE v DUMBRECK , involving a child killed by machinery in a coal mine, had decided that there was no duty of care to maintain fencing where the trespasser was a child. In HERRINGTON the House of Lords  used the Practice Statement to overrule their 1929 precedent because of the changed attitude of society towards child trespassers.

At one time, it was suggested that the Court of Appeal (Civil Division) should have a similar power to avoid its own precedents, but in DAVIS v JOHNSON (1979) the House of Lords held that the Court of Appeal (Civil Division) must follow its own past decisions unless it could overrule itself using one of the three exceptions stated in YOUNG v BRISTOL AEROPLANE . These exceptions are:

• i. the Court of Appeal may choose between two conflicting precedents of its own. Once it has chosen it cannot go back on the choice;
• ii. where there is a decision of the Supreme Court which by implication overrules a Court of Appeal decision, the Court of Appeal must follow the Supreme Court; and
• iii. it is not bound by its own precedents made per incuriam (in error). 

 Normally the Court of Appeal (Criminal Division) has to follow its own precedents to ensure certainty in the law. However, as well as using the exceptions from YOUNG’S CASE, the Criminal Division can also refuse to follow a precedent of its own if the judges in that earlier case have ‘misapplied or misunderstood’ the law:  R v TAYLOR (1950). This extra exception arises because in criminal cases people’s freedom is involved and more flexibility to develop the law is needed to avoid injustice. 

Distinguishing occurs when a court of any level finds a difference in the material facts between the case it is hearing and a precedent. As a result the court may refuse to follow the precedent. Distinguishing is a major factor in allowing precedent to remain flexible and allow case law to develop. 

In BALFOUR v BALFOUR (1919) Mr B agreed to pay living expenses to his wife while she was ill in this country and he was forced to work abroad. They separated and he stopped the payments. It was decided by the Court of Appeal that a claim by the wife for breach of contract should not succeed because there was no intention to create a legally binding agreement. MERRITT v MERRITT (1971) also involved a wife suing her husband for breach of contract, but this time the wife was successful before the Court of Appeal because the material facts of the two cases were sufficiently different. Firstly, the agreement to pay maintenance had been made after the couple had separated. Secondly, the agreement in MERRITT was made in writing. This distinguished the case from BALFOUR; the agreement in MERRITT was a contract because there was an intention to create a legally binding agreement.