Judicial precedent Law AS

The doctrine of judicial precendent is based on the principle of stare decisis meaning to 'stand by what has been decided'.

Under this doctrine, legal priciples made by judges in the higher courts set a precedent to be followed by that court and all courts below it in future cases of similar fact.

For this system to operate successfully, 3 things are required:

1. A settled court structure

2. A ratio decidendi

3. Accurate records of the decisions made by the superior courts

A settles court structure is important because judges need to know which decisions they are bound to follow. The english court structure was established by the judicature acts 1873-75.

The Supreme Court (SC)

The SC is the highest domestic court and is binding on all courts beneath it. The court was established under the constitutional reform act 2005. The SC can over-rule any decision from a lower court. Up until 1996 the SC was bound by its own previous decisions unless those decisions were made per incuram.In 1966 Lord Gardiner announced the practise statement which stated that the court could depart from their own previous decisions 'where it appeared right to do so'.

An example of the HL departing from its previous decision is British Railways Board V Herrington when the HL departed from its own decision in Addie V Dumbreck. In BRB V Herrington the HL held that an occupier of land owes child tresspassers a duty to protect them from injury.

The Court of Appeal (CA)

The CA is directly below the SC and it has 2 divisions, these being Criminal and Civil. The CA is bound by the SC and it binds all courts below and usually itself,with some exceptions, but the two divisions do not bind each other.

In Young V Bristol Aeroplane Co, the CA listed the circumstances where it can refuse to follow one of its own previous decisions:

• If the previous decision conflicts with a later SC decision, then the CA must follow the decision of the SC.
• If there are 2 conflicting previous CA decisions, then the CA must choose one to follow.
• If the previous decision was made per incuram (through lack of care).

The CA Criminal division has one more exception,this being where it considers the previous decision was wrong and will do injustice to the defendant.

A case in which the CA had to decide between 2 conflicting decisions was Parmenter. The D caused serious injuries to his baby, the court eventually followed the precedent laid down in Spratt and the D could not be found guilty under S47 because foresight of harm was required. The case was then appealed to the HL which reversed the decision and followed the precedent laid down in Savage…