Judicial Precedent

The doctrine of Judicial Precedent is founded on the principle of ‘stare decisis’, meaning to stand by the decision. Essentially it refers to the idea that once a court makes a decision, both they and other courts beneath them are bound by that decision, except for in certain, limited circumstances. This means that cases which are alike are treated in the same way, ensuring justice in the system.

In order for this to work effectively, there must be a clear hierarchy of courts. At the lower end of the hierarchy in the UK there are Magistrates, Crown and County courts. These courts do not have the power to create or overrule precedent set in previous cases. At the upper end of the hierarchy are the appellate courts: the High Court, the Court of Appeal and then at the very top, the UK Supreme Court. These courts do have the power to make precedent and in some cases depart from it. More on that later.

In order for courts to use precedent set in previous cases, there must be an accurate written record of the decisions made in those cases. The records are found in Law Reports. These can come in a variety of forms. The highest ranking form of Law Report are those found in publications such as the All England Series, or the Weekly Law Reports, written by legal academics. These are publications specially tailored to provide detailed legal information. Law Reports can also be found, however, in the Law sections of broadsheet newspapers and in legal journals, both online and in print form.

In order to use precedents set out in the Law Reports, judges must be able to identify the ‘ratio decidendi’, or the reasons for the decisions made in past cases. It is the reasons, rather than anything else, which ‘bind’ future cases, where the reasoning is similar enough to draw the same or similar conclusion.

Sometimes, however, there are cases which provide the reasoning upon which one can base future decisions, but these decisions may not be ‘binding’. This could be, for example, because they come from an inferior court, or from another country. In situations such as these, a court may choose to follow a previous decision, even though they do not have to. This is called a ‘persuasive’ rather than a ‘binding’ precedent. Another example of a persuasive precedent is where a court may decide to apply comments made by a judge in a previous case, even though they did not form part of the ratio of that case. One such ‘obiter’ comment, or comment made ‘by the way’, is found in the ratio for R v Gotts, where the judge decided to follow the ‘obiter’ comment made in the earlier murder case of R v Howe, stating that the defence of duress cannot be a defence to attempted murder either.

In order to avoid following precedent, higher courts must meet certain criteria, so that judicial precedent as a system remains intact. One way of departing from a previous decision is to have the past decision declared as ‘mistaken’. If a decision was made mistakenly, or ‘per incuriam’, then it would be unjust to continue to follow it.

Distinguishing - Another way to avoid following precedent is to find significant differences between the previous case and the present one. If one can make the argument that the facts of the two cases are sufficiently different, then one need not follow the past decision, as the two case are not similar enough to necessarily arrive at the same decision.

A final way in which courts can depart from precedent is to overrule past decisions. Usually courts are even bound by their own decisions, but the Court of Appeal and the UK Supreme Court have specific ways of getting around this issue, in very limited circumstances.

In the case of Young v Bristol Aeroplane, the Court of Appeal decided that it need not be bound by its own previous decisions, if at least one of the following criteria could be met:

The court is entitled and bound to decide which of two conflicting decisions of its own it will follow
The court is bound to refuse to follow a decision on its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords (now the UK Supreme Court)
The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam

It should also be noted that the Court of Appeal Criminal Division and Court of Appeal Civil Division do not bind each other.

Finally, the UK Supreme Court is able to depart from precedent using a different mechanism, the Practice Statement 1966. This was a document created by Lord Gardiner LC, who argued that although the UK Supreme Court (then the House of Lords) should aim to follow their own past decisions, they should be able to depart from them, “when it appears right to do so”.

One significant use of the Practice Statement was in 1993 in the case of Pepper v Hart, where the House of Lords decided to overrule the decision in Davis v Johnson. The decision allowed from that point on, the use of Hansard as an aid to statutory interpretation.

Despite this, the Practice Statement is still used extremely sparingly and often not used at all, even where it appears right to do so, so that consistency and stability are maintained within the system of precedent.

True or false, stare decisis means “Stand by the decision”?: True
Which court sits at the top of the hierarchy in the UK?: UK Supreme Court
Is the All England Series a court decision or a law report?: Law report
Did R v Howe set a binding precedent for R v Gotts to follow, or was it persuasive?: Persuasive
The Case of Young v Bristol Aeroplane sets out criteria for being able to depart from an earlier decision. Which court does it apply to?: Court of Appeal
True or false, thePractice Statement 1966 prevents the UK Supreme Court from departing from its own past decisions?: False
In Pepper v Hart, what was the aid to statutory interpretation that was being debated?: Hansard