Judicial Precedent

INTRODUCTION
Judicial precedent means the process whereby judges follow previously decided cases
where the facts are of sufficient similarity. The doctrine of judicial precedent involves an
application of the principle of stare decisis ie, to stand by the decided. In practice, this
means that inferior courts are bound to apply the legal principles set down by superior
courts in earlier cases. This provides consistency and predictability in the law.

RATIO DECIDENDI AND OBITER DICTUM

The decision or judgement of a judge may fall into two parts: the ratio decidendi (reason for
the decision) and obiter dictum(something said by the way).
RATIO DECIDENDI - The ratio decidendi of a case is the principle of law on which a decision
is based. When a judge delivers judgement in a case he outlines the facts which he finds
have been proved on the evidence. Then he applies the law to those facts and arrives at a
decision, for which he gives the reason (ratio decidendi).
OBITER DICTUM - The judge may go on to speculate about what his decision would or
might have been if the facts of the case had been different. This is an obiter dictum.
The binding part of a judicial decision is the ratio decidendi. An obiter dictum is not binding
in later cases because it was not strictly relevant to the matter in issue in the original case.
However, an obiter dictum may be of persuasive (as opposed to binding) authority in later
cases.
A difficulty arises in that, although the judge will give reasons for his decision, he will not
always say what the ratio decidendi is, and it is then up to a later judge to "elicit" the ratio of
the case. There may, however, be disagreement over what the ratio is and there may be
more than one ratio.

THE COURT HIERARCHY

THE EUROPEAN COURT OF JUSTICE

Under s3(1) of the European Communities Act 1972, decisions of the ECJ are binding, in
matters of Community law, on all courts up to and including the House of Lords.

SUPREME COURT
This is the highest court in the land unless a matter of EC law is involved.
The House of Lords now supreme court was bound by its own previous decisions until 1966
when Lord Gardiner LC announced a change of practice. The Practice Statement [1966] 1
WLR 1234 stated that although the House of Lords would treat its decisions as normally
binding it would depart from these when it appeared right to do so. This power has been
used sparingly.
A decision of the Supreme Court binds all lower courts.

COURT OF APPEAL (CIVIL DIVISION)

The Court of Appeal is bound by decisions of the House of Lords even if it considers them to
be wrong.
In Young v Bristol Aeroplane Co Ltd [1944] KB 718, the Court of Appeal held that it was
bound by its own previous decisions subject to the following three exceptions:
* Where its own previous decisions conflict, the Court of Appeal must decide which to
follow and which to reject.
* The Court of Appeal must refuse to follow a decision of its own which cannot stand with a
decision of the House of Lords even though its decision has not been expressly overruled by
the House of Lords.
* The Court of Appeal need not follow a decision of its own if satisfied that it was given per
incuriam (literally, by carelessness or mistake).
Decisions of the Court of Appeal itself are binding on the High Court and the county courts.

COURT OF APPEAL (CRIMINAL DIVISION)

In principle there is no difference in the application of stare decisis in the civil and criminal
divisions of the Court of Appeal. In practice, however, in addition to the Young exceptions,
because a person's liberty may be at stake, precedent is not followed as rigidly in the
criminal division.
In R v Taylor [1950] 2 KB 368 the Court of Appeal held that in 'questions involving the liberty
of the subject' if a full court considered that 'the law has either been misapplied or
misunderstood' then it must reconsider the earlier decision.

THE HIGH COURT

The High Court is bound by the Court of Appeal and the House of Lords but is not bound by
other High Court decisions. However, they are of strong persuasive authority in the High
Court and are usually followed.
Decisions of individual High Court judges are binding on the county courts.
A Divisional Court is bound by the House of Lords and the Court of Appeal and normally
follows a previous decision of another Divisional Court but may depart from it if it believes
that the previous decision was wrong: R v Greater Manchester Coroner, ex parte Tal [1985]
QB 67.

CROWN COURTS
Decisions made on points of law by judges sitting at the Crown Court are not binding,
though they are of persuasive authority. Therefore, there is no obligation on other Crown
Court judges to follow them.
COUNTY COURTS AND MAGISTRATES' COURTS
The decisions of these courts are not binding. They are rarely important in law and are not
usually reported in the law reports.

AVOIDING PRECEDENTS

DISTINGUISHING
A binding precedent is a decided case which a court must follow. But a previous case is only
binding in a later case if the legal principle involved is the same and the facts are similar.
Distinguishing a case on its facts, or on the point of law involved, is a device used by judges
usually in order to avoid the consequences of an earlier inconvenient decision which is, in
strict practice, binding on them.
What is reasonably distinguishable depends on the particular cases and the particular court
- some judges being more inclined to 'distinguish' disliked authorities than others. In Jones v
Secretary of State for Social Services [1972] AC 944, Lord Reid stated:
"It is notorious that where an existing decision is disapproved but cannot be overruled
courts tend to distinguish it on inadequate grounds. I do not think that they act wrongly in
so doing, they are adopting the less bad of the only alternatives open to them. But this is
bound to lead to uncertainty ..."
At the other extreme, Buckley LJ in Olympia Oil v Produce Brokers [1914] 3 KB 1262 stated:
"I am unable to adduce any reason to show why that decision which I am about to
pronounce is right ... but I am bound by authority which, of course, it is my duty to follow
..."

OVERRULING
A higher court can overrule a decision made in an earlier case by a lower court eg, the Court
of Appeal can overrule an earlier High Court decision.
Overruling can occur if the previous court did not correctly apply the law, or because the
later court considers that the rule of law contained in the previous ratio decidendi is no
longer desirable.

REVERSING
Reversing is the overturning on appeal by a higher court, of the decision of the court below
that hearing the appeal. The appeal court will then substitute its own decision.

PER INCURIAM
A decision which is reached per incuriam is one reached by carelessness or mistake, and can
be avoided. In Morelle v Wakeling [1955] 2 QB 379 Lord Evershed MR stated that "the only
case in which decisions should be held to have been given per incuriam are those of
decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of
some authority binding on the court concerned".
In Secretary of State for Trade and Industry v Desai (1991) The Times 5 December, Scott LJ
said that to come within the category of per incuriam it must be shown not only that the
decision involved some manifest slip or error but also that to leave the decision standing
would be likely, inter alia, to produce serious inconvenience in the administration of justice
or significant injustice to citizens.
However, this rule does not permit the Court of Appeal to ignore decisions of the House of
Lords. In Cassell v Broome [1972] AC 1027 Lord Denning MR held the House of Lords'
decision in Rookes v Barnard [1964] AC 1129 to be per incuriam on the basis that it ignored
previous House of Lords' decisions. He was rebuked sternly by the House of Lords who
considered that the Court of Appeal 'really only meant' that it 'did not agree' with the
earlier decision:
"Even if this is not so, it is not open to the Court of Appeal to give gratuitous advice to
judges of first instance to ignore decisions of the House of Lords." (Lord Hailsham)

PERSUASIVE PRECEDENTS
A persuasive precedent is one which is not absolutely binding on a court but which may be
applied. The following are some examples:
* Decisions of English courts lower in the hierarchy. For example, the House of Lords may
follow a Court of Appeal decision, and the Court of appeal may follow a High Court
decision, although not strictly bound to do so.
* Decisions of the Judicial Committee of the Privy Council.
* Decisions of the courts in Scotland, Ireland, the Commonwealth (especially Australia,
Canada and New Zealand), and the USA. These are usually cited where there is a shortage
or total lack of English authority on a point.
* Obiter dicta of English judges.

OTHER PERSUASIVE AUTHORITIES

Where there is no direct authority in the form of decided cases, persuasive authority may
be found in legal writings in textbooks and periodicals. In modern times many authors have
been cited frequently in court, both by counsel and by judges in judgements, eg Smith and
Hogan, Criminal Law.

ADVANTAGES AND DISADVANTAGES OF PRECEDENT

ADVANTAGES
* There is certainty in the law. By looking at existing precedents it is possible to forecast
what a decision will be and plan accordingly.
* There is uniformity in the law. Similar cases will be treated in the same way. This is
important to give the system a sense of justice and to make the system acceptable to the
public.
* Judicial precedent is flexible. There are a number of ways to avoid precedents and this
enables the system to change and to adapt to new situations.
* Judicial precedent is practical in nature. It is based on real facts, unlike legislation.
* Judicial precedent is detailed. There is a wealth of cases to which to refer.

DISADVANTAGES
* Difficulties can arise in deciding what the ratio decidendi is, particularly if there are a
number of reasons.
* There may be a considerable wait for a case to come to court for a point to be decided.
* Cases can easily be distinguished on their facts to avoid following an inconvenient
precedent.
* There is far too much case law and it is too complex.