Precedent

Stare Decisis- relies heavily on law reporting, otherwise wouldn't know what to stand by. It underpins all of binding precedent

Ratio decidendi- reason for the decision

Obiter dictum- other things said/ things said by the way

Original- A point in an area of law that has never been decided before, so there are no past cases on which the judge can base their decision. It often occurs due to changes in technology, science, society etc. In this case, the judge looks at cases which are closest in principle and if they are close enough, uses similar rules. 

Binding- A precedent from an earlier case which must be followed- usually found in the ratio. Even if the jduge in he later case does not agree with it. Facts in the later case must be sufficiently similar to those in an earlier case- the earlier case must have been decided by a court which was superior or the same level as the later court. Binding precedent tends to work through the court hierarchy. Donoghue V Stevenson 1932.

Persuasive- Judge may not be bound by an earlier decision but may feel it is right and be persuaded by it- it is not binding. Fives sources of persuasive precedent in criminal law: 1. Courts lower in hierarchy  R v R 1991- man guilty of ****** wife. 2. Decisions by the PC  Jersey V Holley 2005. 3. Statements obiter  Howe 1987- duress no defence 4. Dissenting judgement, 5. Other countries  US v Kirby 

• Original views was house of lords could overrule past decision, but gradually this has been removed-  London street tramways V London county council 1998
• From 1898-1966, the house of lords regarded itself as completely bound by its previous decisions, unless decision was made per incurium (in error)
• Any unsatisfactory decisions had to be changed by a new act of parliament DPP v Smith 1961
• This level of restriction of House of Lords is uneccesary and prevented law making
• 1966 Lord Chancellor issued a practice statement announcing a change to the rule in London Street Tramways
• Allows House of Lords to depart from its own previous decisions when it is right to do so

• Not intedned to effect precedent too much anywhere other than his house
• From 1966-2009 (when HL became SC) the practice statement allowed the house of lords to change law if an earlier case had been wrongly decided
• HL was reluctant to use this power at first, first use was in Conway V Rimmer'68 but first major use was not until a chance in social condition Herrington V British railways board'72. There is still great reluctance to use the practice statement. One of the most notorious uses was developing the law in Pepper V Hart'93. 
• Practice statement stated that criminal law needed to remain certain so it took 20 years before it was used in criminal law during R V Shivpuri'86

Practice statement and the Supreme Court

• When the HL became the SC, it was decided the practice statement was still in use and applied
• It has been transferred to the supreme court under S.40 Constitutional Reform Act 2005

• Rules for precedent not the same in each division 
• Both divisions bound by the Supreme Court and ECJ however: Broome Cajjell and co ltd'71- Lord Denning refused to follow an earlier case
• Could be argued the court of appeal should be allowed to ignore decisions from the supreme court because few cases make it to the supreme court so law can be slow to change
• If the court of appeal ignore the supreme court, the whole system would break down and law would become uncertain
• Divisions do not bind eachother, however in each devision they tend to
• In Young V Bristol Aeroplanes co ltd 1944 the exceptions were:
• 1. Previous conflicting decisions you can pick one to follow
• 2. Where there is a decision by the supreme court which overrules the court of appeal decision, it must be followed
• 3. Where decision is made per incuriam because a relevant act of parliament has not been considered by the court
• Davis V Johnson'79- C of A refused to follow decision made earlier on domestic abuse
  
• Aswell as the exceptions from young, the criminal division can also refuse to follow a past decision if the law has been misapplied or misunderstood
• S.2(1)(a) HRA'98- all courts must take into account any judgement of the EHCR

Pros

• Stops unnecesary appeals to the supreme court
• Increases flexibility

Cons

• Reduction in certainty
• Undermines the supreme court
• Breakdown in system of precedent
• More appeals

• A method used by a judge to avoid following a past decision he would otherwise have to follow
• Judge has to find that the material facts are sufficiently different from him to draw a distinction between the current and previous case
• He will then not be bound by the previous case and can set a fresh precedent
• Balfour V Balfour 1919- promised wife £30/month while away

• Where a court in a later case states that the legal rule in an earlier case was decided wrong
• Retrospective- not typical in law
• For supreme court- practice statement
• Court of appeal- young criteria

• A court that is higher in the court hierarchy overturns the decision of a lower court
• First case judge decided case incorrectly e.g. court of appeal disagrees with high court, so they reverse decision of the high court
• Can only happen in an appeal case

• Used to be said judges do not make new law, they just enforce what was already there
• It is now agreed that judges do infact make new law and extend legal principles
• Make a lot of contract law- nearly all law on how to make a contract is case law 
• Tort of negligence has become law in its own right thanks to the development of the courts 
• Criminal law intention- e.g. purely because of judges that the law on murder now include an intention to cause serious harm

Advantages

• Certainty- courts follow past decisions, people know what the law is and how it is likely to be applied to their case
• Consistency and fairness- just and fair that like cases are decided in same way
• Precision- law becomes very precise and illustrated well through cases
• Flexibility- there is room for the law to change, especially as supreme court can overrule itself

Disadvantages

• Rigidity- lower courts have to follow higher courts and court of appeal has to follow itself
• Complexity- over half a million reported cases, not always easy to find relevant case law each time
• Illogical decisions- distinguishing can lead to hair splitting and some areas becoming very complex
• Slowness of growth- judges are aware that many areas of the law need development, but unless a case comes before them they cannot change it

• In order to follow past decisions there must be accurate record of what decisions were ade
• Written reports have been around since the 13th century though many were brief and not always accurate
• 1865- incorporated council of law reporting was set up which was controlled by the courts
• All high court, court of appeal and supreme court now reported online