Judicial precedent

Common law and statute law

Common law is judge made law - judicial precedent. Statute law is passed through bodies like parliament.

Judicial precedent

The principle that past decisions of judges create law for future judges to follow.

Stare decisis

“Stand by what has been established and do not unsettle the established”.

Ratio decidendi

The speech made by the judge at the end of the case contains ratio decidendi. These are the rules that must be followed. They create a precedent for judges to follow in the future. This is the reason for a court’s decision and is an important part of the judgment. The judge applies the appropriate rule or principle of law.

Obliter dicta

The speech made by the judge at the end of the case includes obliter dicta. These are the rules that may not be followed. This is everything that isn’t ratio decidendi. Future judges may be influenced by it. These statements are remarks or opinions. They are often made by way of a suggestion of an altered outcome if the facts of the case were different.

The practice statement

In 1966, the practice statement allowed the Supreme Court to change the law if it believes that an earlier case was wrongly decided. However, it was emphasised that the power to depart from precedent should be used sparingly and on a case-by-case basis. They have the flexibility to refuse to follow an earlier case when it is “right to do so”.

Original precedent

Refers to when a judge must come to a decision without following a previous decision (precedent). This is due to the facts not coming before a court previously. For example, Donoghue v Stevenson. A decomposed snail was found at the bottom of a man’s drink. Prior to this, there wasn’t a precedent establishing a duty of care between business and consumer. The judge made the duty of care recognised.

Persuasive precedent

It isn’t binding on the court. However, the judge may consider it and decide that it is a correct principle, so he is persuaded to follow it. It comes from a number of sources such as: other courts in the hierarchy, statements made by obliter dicta and decisions of courts in other countries. Judges may look to persuasive precedents to understand how similar cases were decided.

Binding precendent

This is precedent from an earlier case. It must be followed even if the judge in the later case doesn’t agree with the legal principle. A binding precedent is only created when the facts of the case are sufficiently similar to the original case. Additionally, the decision has to have been made by a court which is senior to the court hearing the later case. It may be the same level in some situations, though.

Distinguishing

If the case has similar facts as existing case law then the judge is bound to follow the precedent. However, if the facts are materially different then there is no obligation to follow the previous case. For example, R v Brown banned consensual sadomasochistic activity causing ABH. However, it was distinguished from Wilson where it was excused because it was between a married couple, and not just a group of men.

Overruling

A court is asked to review whether a precedent created by a court at a lower level in the hierarchy is correct law. The European court of justice and the Supreme Court also have the ability to overrule their previous decisions. For example, the case of R v R. A man committed marital rape when it was legal, but was later found guilty when the precedent was changed. It ensures the courts have freedom to develop the law when necessary.

Strengths of judicial precedent

Fairness and consistency. It is seen as fair and just that similar cases should be decided in a similar way.

Flexibility. The law can change as the Supreme Court can use the practice statement to overrule cases. Also, distinguishing precedent gives courts freedom to develop the law.

Limitations of judicial precedent

Complex. The judgements themselves are often very long with no clear distinction between the comments and the reasons for the decision.

Changing the law is difficult. A change in the law only occurs if parties have the courage, persistence and money to appeal the case.