Judicial Precedent

Judicial Precedent

Judicial precedent (case law) is the system whereby judges follow the legal principles established in earlier court decisions. It is based on the Latin maxim stare decisis — "stand by what has been decided."

Key Terminology

Ratio Decidendi

The ratio decidendi ("reason for deciding") is the legal principle upon which the decision is based. It is the binding part of a judgment that lower courts must follow. Identifying the ratio can be difficult, especially where multiple judges give separate judgments (as in the Supreme Court).

Obiter Dicta

Obiter dicta ("things said by the way") are comments made by judges that are not essential to the decision. They are persuasive but not binding. A famous obiter statement was Lord Denning's comments in Central London Property Trust Ltd v High Trees House Ltd [1947] on the doctrine of promissory estoppel.

Original Precedent

Where a court faces a novel legal issue with no existing precedent, the judge creates an original precedent. For example, Donoghue v Stevenson [1932] established the modern law of negligence and the neighbour principle.

The Court Hierarchy and Binding Precedent

Precedent operates through the court hierarchy:

Court	Bound by	Binds
Supreme Court	Not strictly bound by its own decisions (Practice Statement 1966)	All lower courts
Court of Appeal (Civil Division)	Supreme Court; generally its own decisions	High Court, lower courts
Court of Appeal (Criminal Division)	Supreme Court; more flexible with own decisions	Crown Court, lower courts
High Court	Supreme Court, Court of Appeal	County Court, lower courts
Crown Court	All higher courts	Not binding, but persuasive
Magistrates' & County Courts	All higher courts	No binding precedent

The Practice Statement 1966

The Practice Statement [1966] allows the Supreme Court (formerly House of Lords) to depart from its own previous decisions "when it appears right to do so." It was used sparingly:

• First used: British Railways Board v Herrington [1972] — the House of Lords departed from Addie v Dumbreck [1929] on the duty owed to child trespassers
• R v Shivpuri [1987] — overruled Anderton v Ryan [1985] on the law of criminal attempts
• R v Jogee [2016] — the Supreme Court departed from Chan Wing-Siu [1985] on parasitic accessorial liability (joint enterprise), holding that the law had taken a "wrong turn"
• R v R [1992] — overruled the longstanding marital rape exemption, holding that a husband could be guilty of raping his wife

The Practice Statement has been used rarely because the Supreme Court values certainty and predictability in the law.

Court of Appeal: Young v Bristol Aeroplane [1944]

The Court of Appeal is generally bound by its own previous decisions under the rule in Young v Bristol Aeroplane Co Ltd [1944], subject to three exceptions:

1. Where there are two conflicting Court of Appeal decisions, the court may choose which to follow

2. Where a previous Court of Appeal decision has been impliedly overruled by the Supreme Court

3. Where the previous decision was made per incuriam (in ignorance of a relevant statute or binding precedent)

In the criminal division, the Court of Appeal has a further exception: it may depart from its own decisions where following them would cause injustice (R v Taylor [1950]).

Lord Denning repeatedly challenged these restrictions, arguing in Davis v Johnson [1979] that the Court of Appeal should be freer to overrule its own decisions. The House of Lords firmly rejected this.

Methods of Avoiding Precedent

Distinguishing

A judge may distinguish a previous case by identifying a material difference in facts, making the earlier ratio inapplicable. For example:

• Balfour v Balfour [1919] held that domestic agreements between spouses were not legally binding, but Merritt v Merritt [1970] was distinguished because the couple had separated, creating an intention to create legal relations
• R v Brown [1994] held that consent was no defence to ABH during sadomasochistic activities, but R v Wilson [1997] distinguished this where a wife consented to branding by her husband (akin to tattooing)

Overruling

A higher court may overrule a decision of a lower court in a later, different case. The Supreme Court may also overrule its own past decisions using the Practice Statement 1966.

• R v R [1992] overruled the centuries-old marital rape exemption from R v Clarence [1888]
• Pepper v Hart [1993] overruled Davis v Johnson [1979] on the use of Hansard as an aid to statutory interpretation

Reversing

A higher court reverses a decision when it reaches the opposite conclusion in the same case on appeal.

Advantages of Judicial Precedent

• Certainty and predictability — similar cases produce similar outcomes
• Consistency and fairness — the system promotes equal treatment
• Flexibility — the Practice Statement and distinguishing allow the law to develop
• Practical and detailed — case law arises from real disputes, addressing specific scenarios statutes may not cover
• Time-saving — once a principle is established, it can be applied without full re-argument

Disadvantages of Judicial Precedent

• Rigidity — the strict hierarchy means unjust precedents may persist until a suitable case reaches the Supreme Court
• Complexity and volume — the vast number of reported cases makes finding the relevant ratio difficult
• Undemocratic — judges are unelected and unaccountable, yet they effectively make law
• Retrospective effect — when a court overrules or departs from a precedent, the new rule applies to events that occurred before the change
• Distinguishing can be artificial — judges may strain to find differences in facts to avoid an inconvenient precedent
• Slowness of reform — change depends on appropriate cases being brought before the courts

Exam Evaluation Points

• Discuss whether judicial precedent achieves the right balance between certainty and flexibility
• Evaluate the effectiveness of the Practice Statement 1966 — is it used too sparingly?
• Consider whether judges are truly "declaring" existing law or making new law
• Assess the constitutional implications of unelected judges developing the law
• Compare the relative merits of judicial precedent and statutory reform as methods of law-making