Types of Precedents

Understanding Precedent in Law

  • Precedent is a legal principle that decides cases based on previously established rulings.

Types of Precedents

  • Binding Precedents: Decisions made by higher courts that lower courts must follow.

  • Persuasive Precedents: Non-binding precedents influencing judges, including:

    • Decisions of lower courts.

    • High courts from other jurisdictions.

    • Statements made obiter ("by the way") which are considered persuasive but not binding.

    • Dissenting judgments that may be followed in future cases.

Examples of Persuasive Precedent

  • R v R (1991): The House of Lords followed the Court of Appeal's reasoning that a husband could be guilty of raping his wife, showing the influence of lower courts.

  • A-G for Jersey v Holley (2005): A Privy Council decision followed by the Court of Appeal, illustrating respect for decisions made outside UK courts.

  • Dissenting Judgments: In Hedley Byrne v Heller & Partners, minority opinions in previous cases led to new context in legal interpretation.

Human Rights Act 1998

  • Introduced flexibility in precedent with Section 2 requiring UK judges to consider European Court of Human Rights case law.

  • Vinter & Others v UK (2013): A landmark case where whole life orders were deemed potentially in violation of Article 3 ECHR, impacting how judges impose life sentences in the UK.

Influences of the Vinter Decision

  • While UK judges must take into account Strasbourg case law, they are not bound to apply it strictly.

  • Example Cases:

    • R v Anxiang Du (2013): A judge referenced Vinter, opting for a minimum term instead of a whole life order.

    • R v Jamie Reynolds (2013): Despite Vinter, the judge imposed a whole life order based on prior UK rulings, demonstrating judicial discretion.

Precedent and Judicial Discretion

  • Despite the appearance of rigidity in precedent, judges have methods to work around precedents, such as:

    • Distinguishing cases based on unique facts.

    • Creating flexibility within the system to avoid injustice while respecting previous rulings.

Significant Case Example

  • Balfour v Balfour (1919): Established that domestic agreements aren’t legally binding.

  • Merritt v Merritt (1970): This case distinguished itself from Balfour, showing that agreements post-separation can be legally binding due to changed circumstances.

Balancing Certainty and Flexibility

  • Certainty:

    • Promotes predictability and consistency in law.

    • Maintains the constitutional role of judges.

  • Flexibility:

    • Allows for law to evolve and adapt to new circumstances.

    • Helps prevent injustice through judicial creativity.

Ultimately, a balance is required to ensure justice while maintaining a reliable legal framework.