Unit 1 Judicial Precedent

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Stare Decisis

Precedents: decisions made on a point of law by a senior court which must be followed when a later case on the same point of law reaches a lower court.

Stare Decisis: To stand by what has been said (providing certainty.)

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European Court of Justice


Court of Appeal: Criminal and Civil divisions

Divisonal courts: Queens Bench, Chancery and Family

Crown Court and High Court

Magistrates' and County

Blue: Both

Green: Civil

Red: Criminal

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Law Reports

Incorporated Council of Law Reporting set a format in 1865

Responsible for Supreme, C of A and Divisional courts (below are not recorded)


  • Name and date of case
  • Which court it was heard in
  • Summary of facts
  • Final judgement- contains precedent 
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Ratio Decidendi - decision and reasons

The legal reason which the judge based his decision on (verdict) containing the point of law which must be followed in similar cases

Binding Precedent: Oxford v Moss

Ratio: Knowledge is not property which can be stolen

Obiter dicta - other things said

The remainder of the judgement

Persuasive Precedent: R v Gotts and R v Howe

Judges said duress isn't a defence for attempted murder. Gotts chose to follow this and wrote it in their ratio changing it from a persuasive to a binding precedent

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Types of Precedent


Donoghue v Stevenson - new point of law. Created negligence


Grant v Australian Knitting Mills had to follow precendent from Donoghue v Stevenson


R v Gotts chose to follow R v Howe - duress should not be a defence for attempted murder

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Supreme Court

1898 London Street Tramways v LCC 

           SC should be bound by their own precedents

1966 Practice Statement

            Can overrule 'when it appears right to do so'

1972 Re Dowling didn't overrule Jones v SS for SS

           They knew their decision was wrong but wanted to maintain certainty

1972 First major use in Herrington v BRB

           Overruled Addie v Dumbreck because law was out of date

1986 First criminal use in R v Shivpuri

            Overruled Anderton v Ryan because there was an error in the law

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Court of Appeal

Generally binds itself but civil and criminal divisions do not

3 exceptions which allow C of A to overrule decided in Young v BAC

1. Conflicting C of A precedents. One will be chosen and the other will be overruled

2. A later precedent made by the Supreme Court which contradicts C of A's

3. When it was made 'per incurium' (by mistake) eg. relevant statute not considered at the time

There is another exception for criminal cases because someone's freedom is at stake

4. If the law was misimplied or misunderstood in a previous case 

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Persuasive Precedents

1. Lower courts

In R v R, Supreme court chose to look at C of A's precedent

2. Decisions of Privvy council 

R v James and Karimi, C of A chose to follow a different precedent that the Supreme's one

3. Obiter dicta

R v Gotts followed obiter dicta from R v Howe

4. Dissenting judgements

R v Wilson followed dissenting judgement from R v Brown

5. Decisions in other similar countries eg. Canada, Australia

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Avoiding Precedent

Overruling- when a higher court in a later case believes a precedent of a later case on the same point of law is wrong or outdated. They can either overrule precedents of courts below or sometimes overrule their own eg. by using the Practice Statement 1966.

R v Shivpuri overruled Anderton v Ryan and Pepper v Hart overruled Davis v Johnson

Distinguishing- when any court decides that the material facts of the case are sufficiently different to be able to draw a distinction between the two. The court in the later case is't bound by the precedent made earlier. This creates a seperate precedent on the same point of law.

R v Smith distinguished R v Jordans and Merritt distinguished Balfour

Disapproving- where a judge states in his judgement that a precedent made in an earlier case was wrong. This can occur: in a later case of a similar, not the same, point of law or when a later case is heard in a lower court. The judge is still bound by the precedent but can form a persuasive precedent in their judgement which could be followed in a later case.

Supreme in R v Hasan dissapproved of C of A's decision in Hudson v Taylor (duress as a defence)

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Case examples

Overruling: Anderton v Ryan- it is not a crime to attempt to do the impossible

                 R v Shivpuri- it is a crime to attempt to do the impossible (fixing an error in the law)

Distinguishing: R v Jordan did break the chain of causation but  R v Smith did not

  • Treatment in Jordans was 'palpubly wrong'
  • Injury in Smith was overwhelming cause of death
  • Time span between injury and death differed. (Jordans- healed, Smith- fresh)

Balfour's agreement does not amount to contract but Merritt's does

  • Agreement in M v M was after separation so was serious, not a 'domestic agreement'
  • Made in writing, not verbally, so easier to prove
  • There was an intention to be bound by it

Disapproving:Hudson v Taylor: Ds lied about evidence because they were told they would be 'cut up'. Duress was allowed as a defence even though the threats were not immediate. Still binding.

R v Hasan: Threats had to be immediate. If not, duress was not a defence. Only persuasive.

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  • Allows the law to respond to real life situations. Precedent is based on case laws which happen whereas situations in statutes may or may not actually happen. The law can be changed and adapted to real responses in events, allowing it to develop and change with time.

In R v R, Supreme changed the law to make marital **** a crime to reflect the growth of status for women in society.

  • Ensures certainty within the law. Precedent is based on 'stare decisis' to stand by what's been said. Lower courts boun by higher. Higher courts usually follow their own (Supreme reluctant to use the PS). This benefits the public, defendants and their lawyers.

In Jones v SS for SS the Supreme court refused to overrule their precedent from Re Dowling even though 4/7 judges agreed it was wrong. They thought certainty was more important.

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  • Precedent can make the law rigid and slow to develop. Lower courts have to follow higher courts and higher courts often follow their own. Incorrect precedents can't be corrected and the error is repeated in later cases which makes the law out of date

In Jones v SS for SS the Supreme court refused to overrule Re Dowling, despite 4/7 judges saying it was wrong. Judges put certainty over justice.

  • Precedent is very complex. There are many precedents, over 1/2 a million.Judgements containing precedents are often very long and written in continuous prose which makes it difficult to distinguish between obiter and ratio. Difficult for judges who are unsure of which precedents they have to follow and the ratio is hard to find.

Dodd's case: the judges in C of A couldn't find the ratio of a Supreme court's precedent so couldn't follow a binding precedent.

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