Judicial precedent

What you'll learn

• How the doctrine of stare decisis makes past cases legally important.
• How to identify ratio decidendi and obiter dicta in a judgment.
• How the civil and criminal court hierarchies affect binding precedent.
• How judges use overruling, reversing and distinguishing, plus the main advantages and disadvantages of precedent.

The basic idea: law made through cases

Judicial precedent is part of common law: law developed by judges through decisions in cases. When a court decides a legal issue, later courts may have to follow the legal rule from that earlier case.

The important point is that precedent is not just “what happened in the previous case”. It is the legal reason for the decision which matters.

The doctrine of stare decisis

This doctrine creates a structured system. Higher courts set rules which lower courts must apply. This supports consistency: similar cases should be decided in similar ways.

Ratio decidendi and obiter dicta

A judgment can contain lots of reasoning, examples and comments. You need to separate the binding part from the non-binding part.

For example, Donoghue v Stevenson (1932) involved a consumer who became ill after finding a snail in a bottle of ginger beer; the case established that a manufacturer may owe a duty of care to the ultimate consumer where harm is reasonably foreseeable.

The court hierarchy

Precedent only works if you know which courts are above others. In general, decisions flow downwards: higher courts bind lower courts.

Criminal hierarchy

The main criminal route is:

• Magistrates’ Court and Crown Court
• Court of Appeal, Criminal Division
• UK Supreme Court

The Crown Court is very important for trials and sentencing, but its decisions do not usually create binding precedent. Binding criminal precedent mainly comes from the Court of Appeal, Criminal Division, and the UK Supreme Court.

Civil hierarchy

The main civil route is:

• County Court and High Court
• Court of Appeal, Civil Division
• UK Supreme Court

The High Court has three divisions: King’s Bench Division, Chancery Division and Family Division. High Court decisions may be persuasive or sometimes binding on lower courts, but the strongest binding precedent comes from the Court of Appeal and UK Supreme Court.

Binding, persuasive and original precedent

Persuasive precedent can come from obiter dicta, dissenting judgments, decisions of lower courts, decisions of the Judicial Committee of the Privy Council, or decisions from other common law jurisdictions.

Donoghue v Stevenson (1932) is a classic example of original precedent: there was no direct previous case on a decomposed snail in a drink bottle, so the court developed the “neighbour principle” for negligence.

Exceptions to strict stare decisis

Precedent aims for certainty, but the system would be too rigid if no court could ever correct old mistakes.

The UK Supreme Court

Under UK Supreme Court Practice Directions 3 and 4, the UK Supreme Court will normally follow its own previous decisions, but it may depart from them when it appears right to do so. This continues the approach of the House of Lords’ Practice Statement 1966.

British Railways Board v Herrington (1972) involved a child trespasser injured on railway land; the House of Lords departed from the old rule in Addie v Dumbreck (1929), where a child trespasser had been injured by machinery and the occupier owed only a very limited duty. The new principle recognised a more humane duty towards child trespassers.

R v Shivpuri (1986) involved a defendant who believed he was importing drugs, though the substance was harmless; the House of Lords overruled Anderton v Ryan (1985), where a defendant bought a video recorder she believed was stolen and the court had taken a narrower approach to impossible attempts.

The Court of Appeal and Young v Bristol Aeroplane

The Court of Appeal is generally bound by its own previous decisions and by the UK Supreme Court.

Young v Bristol Aeroplane (1944) arose from claims following an aircraft accident; it established three exceptions where the Court of Appeal may depart from its own earlier decision:

1. There are two conflicting Court of Appeal decisions, so it must choose which to follow.
2. A later UK Supreme Court or House of Lords decision has effectively overruled the earlier Court of Appeal decision.
3. The earlier decision was made per incuriam, meaning “through lack of care”, usually because a relevant statute or binding authority was overlooked.

The Criminal Division has shown slightly more flexibility where liberty is at stake. R v Gould (1968) involved a bigamy conviction and an earlier misunderstanding of the law; the Court of Appeal, Criminal Division accepted that it could depart from a previous decision to avoid injustice.

Historic resistance by the Court of Appeal

The Court of Appeal has not always accepted strict hierarchy comfortably. In Broome v Cassell (1972), a libel damages dispute, the Court of Appeal tried to avoid the House of Lords’ approach in Rookes v Barnard (1964), where trade union threats led to loss of employment and the House of Lords restricted exemplary damages. The House of Lords strongly criticised this and confirmed that the Court of Appeal must follow decisions of the House of Lords — now the UK Supreme Court.

How judges deal with precedent

Judges do not only “follow” precedent. They have techniques for developing the law.

For overruling, use R v Shivpuri (1986): the House of Lords overruled Anderton v Ryan (1985) on impossible attempts.

For reversing, use Gillick v West Norfolk and Wisbech AHA (1985): the House of Lords reversed the Court of Appeal and held that some under-16s can consent to medical treatment if they have sufficient understanding, known as Gillick competence.

For distinguishing, use Balfour v Balfour (1919) and Merritt v Merritt (1970). In Balfour, a married couple living amicably were presumed not to intend legal relations over a domestic allowance. In Merritt, separated spouses who made a written agreement were treated differently, so the earlier case was distinguished.

Advantages and disadvantages of precedent

Advantages

Precedent promotes certainty because people and lawyers can predict how courts are likely to decide future cases. It also supports consistency, as similar cases should be treated alike.

It can be efficient: judges do not have to reinvent the law in every case. It also gives law practical detail because rules develop from real disputes.

Precedent is not completely rigid. Techniques such as distinguishing and overruling allow judges to update the law, as seen in R v Shivpuri (1986) and British Railways Board v Herrington (1972).

Disadvantages

Precedent can be rigid. A lower court may have to follow a rule even if it seems outdated or unfair. This may delay reform until a suitable case reaches the UK Supreme Court or Parliament intervenes.

It can also be complex. There are thousands of reported cases, and identifying the true ratio decidendi can be difficult. Judges may create artificial distinctions to avoid an inconvenient precedent.

There is also a democratic criticism: judges are unelected, yet precedent allows them to develop law. However, this is balanced by the fact that judges decide real disputes, give reasons publicly, and remain subject to Parliament’s ability to legislate.