Judicial Precedent

Definitions –

Precedent is where judges are guided by decisions from earlier cases. Sometimes it is referred to as
treating like cases alike (or stare decisis – standing by the decisions of previous judges).

Sometimes judges will be making new law if a new situation arises. This is referred to as judicial
creativity.

If the judge is applying a legal rule established from a previous case, the decision is called
declaratory precedent.

If the judge is deciding to make a new legal rule, this is known as an original precedent.

When a higher court requires a lower court to follow its previous decision, this is called a binding
precedent.

In situations where judges are able to choose whether to follow a previous precedent / decision, this
is called a persuasive precedent.

How precedent works

There are several factors which need to be present in order for precedent to work:

1. The hierarchy of the courts

The ratio decidendi

Judges don’t always make the ratio decidendi clear. It may be up to later judges or lawyers to
identify it. The ratio decidendi must be the legal principle which applied to decide the case. It must
be distinguished from the obiter dicter (other things said). During the case, judges might make
general comments while making a final decision or it could be the opinion of a minority judge where
there are 3 in the Appeal Courts.

Obiter dicter can only create persuasive precedent, not binding.

The ratio decidendi can be binding or persuasive.

Examples of ratio decidendi:

Donoghue v Stephenson –
In this case, a decomposing snail was discovered in a bottle of ginger beer having been drunk by a
woman who later became ill. The manufacturer was sued, and in the trial, the judge established the
neighbour principle. This means that you have a duty of care to anyone foreseeable affected by your
actions. This established the ratio decidendi and set a precedent that has been followed in
negligence cases since.

Examples of obiter dicter that creates a persuasive precedent include Howe 1987 where duress
(threat / pressure) was declared not to be a defence for murder. The obiter dicter was that duress
was not a case for attempted murder either.

Brown 1993 –

The obiter dicter here said that consent can be a defence to GBH in some circumstances (consenting
to a fight, for example). The case was about a group of sadomasochists who were found guilty of
GBH (after consenting) because the violence was extreme.

Law reports
Law reports are records of the decisions made by superior courts and are crucial so that the ratio
decidendi and obiter dicter can be established and a precedent can be made.

From 1870, official law reports were published by the Inns of Court and by the Law Society.

There are specialised law reports including family law reports, human rights law reports etc.

The media sometimes print law reports, particularly the Times, Guardian and the Independent. Also
journals such as the New Law Journal and the Law Society Gazette print them.

Online records are kept.

The law report must be confirmed by the solicitor or barrister present at the trial (signed to vouch
for authenticity).

Avoiding precedent
Judges may prefer to avoid precedent if it may lead to injustice.

Overruling – A higher court can overrule the decision of a lower court if it considers the decision to
be wrong (see hierarchy of courts for examples).

A higher court can also reverse the decision of a lower court.

Reversing is the same case on appeal whereas overruling is a different case (N.B.)

Distinguishing – The judge may find differences between the previous case and the new one, so
precedent can be avoided. Eg:
Balfour v Balfour 1919 – A husband had agreed to give his wife £30 a month. The Court of Appeal
decided that agreements between a married couple are not intended to make a legally binding
contract.

Merit v Merit 1971 distinguished this decision from Balfour by deciding that a separated couple,
although married, could create a legal contract; therefore setting a new precedent.

Disapproving – This is where the court regards the previous decision to be wrong, often on a point
of law (the per incuriam rule). If a precedent is disapproved then the new decision will be treated as
persuasive in future cases. Eventually, a new precedent is likely to be set.

The 1966 practice statement – This refers to the House of Lords’ (now the Supreme Courts’) decision
that it would not be bound by its own previous decisions.

Young v Bristol Aeroplane Co. 1944 – This said that the Court of Appeal can depart from its own
decisions in 3 circumstances –

1. When the decision conflicts with the House of Lords (Supreme Court).

2. Per incuriam (see disapproving)

3. Where there are two conflicting decisions (eg. Between the 3 or 5 appeal judges)

Advantages of precedent
Consistency – Judges following precedent should ensure that consistent decisions are made which
should lead to greater justice (as opposed to arbitrary decisions)

Certainty – This means that it is possible to predict the likely outcome of a case; so a claimant can
find out the rights, duties and chance of success without the expense of going to court.

Room for growth – Original precedents will establish new law and there is scope for avoiding
precedent which can lead to updates in the law.

For example; original precedent set in the case of Gillick v West Norfolk Health Authority 1985 –

Gillick challenged the rights of doctors to provide contraception to girls under 16 without parental
consent. She argued that doctors should always tell parents and get their consent if girls under 16
came to them about getting contraception. The judges ruled that doctors could prescribe
contraception to them as long as they knew what they were being prescribed and were informed of
the repercussions.

Also the law was changed following the case of R v R 1991:

Previously the law said that marital rape was not a crime under the Sexual Offenses Act 1956. The
judges avoided previous precedent and this led to the law being amended.

Practicality – Precedent responds to everyday situations as they come before the courts which can
be used as guidelines to future litigations.
Scope for detail – Precedent allows for variations and unforeseen cir circumstances that may not
have been considered when the law was drafted. Reported cases contain a large amount of detail
that can be used to help arrive at a ratio decidendi.

Disadvantages of precedent
Undemocratic – Precedent encourages judicial law making. As judges are unelected, they are not
accountable to the public. Therefore critics argue that they are going beyond their powers in
creating law when they should be interpreting and applying law which has been created by
Parliament.

Rigidity – Judges may be forced to make decisions that they disagree with in order to follow
precedent. This is especially true of the lower courts where it is difficult to avoid precedent.

Sophistry – This refers to situations where judges have magnified the smallest differences between
cases in order to distinguish the precedent. Therefore it can lead to uncertainty and some would
argue that cases might be unfairly distinguished when, in reality, the precedent should be followed.

Complexity – There are hundreds of volumes of law reports comprising approximately half a million
pages. There are thousands of cases and sometimes two ratio decidendis. Therefore it is realistic to
expect the legal profession to consult these reports? Meaning that inaccuracies in the law can occur.

Precedent never wears out – It may be reasonable to compare cases from the ‘80s to cases from the
‘90s, but less reasonable if a case in the 90s is expected to follow a precedent from the 1890s due to
changing social conditions and social attitudes (R v R 1991)

Retrospective effects – Making something illegal and applying that law to someone who carried out
an act while it was legal. Precedent applies to events that happened before the case went to court,
therefore if a previous precedent is avoided and an original precedent is set, the defendant could be
immediately liable.

This can be demonstrated in R v R 1991:

The defendant was found guilty of raping his wife. Up until this case the law said that this was not
illegal, so at the time of his action he was not breaking the law.

Lack of research – Judges have to make their decision immediately on the facts of the case before
them. Like Parliament, they may be making new law (if they are setting original precedent).
However, unlike Parliament, they are unable to consult extrinsic experts or allow room for debate
prior to a decision.

Therefore it could be argued that judges have too much power to create law.

(see parliamentary law making pros / cons)