Law Judicial Precedent

Revision for OCR Law Unit 2 Judicial Precedent


Doctrine of Precedent

English system of precedent based on stare decisis. It means stand by what has been decided and do not unsettle the established. Supports idea of fairness and certainty in law.

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Doctrine of Precedent


Speech made at end of case by judge. Will give the decision and the reasons for the decision. Judge gives summary of facts of case, reviews arguments put to him and explains principles of law used to come to decision. 

Principles are important part of speech. Known as ratio decidendi which means "reason for deciding". This creates precedent for future cases. Rest of judgement is obiter dicta which means "other things said"

Can be more than 1 speech depending on how many judges.

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Doctrine of Precedent


Only part of judgement that forms precedent. 

Hard to distinguish between ratio and obiter.

All lower courts must follow the ratio of an earlier court. A higher court may wish to consider it but does not have to follow.

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Doctrine of Precedent


Remainder of speech. 

Judges do not have to follow but may consider it.

Can act is a persasive precedent

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Doctrine of Precedent


Used when a point of law has never been decided.

Will form a new precedent for future cases.

Look at case which is closest in pinciple. Reasoning by analogy.

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Doctrine of Precedent


Is a precedent from earlier case that must be followed even if judge does not agree.

Only created when facts of second case are similar to original case and decision was made by a court senior to the court hearing it.

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Doctrine of Precedent


Not binding but judge may consider and decide that it is the correct principle so he is persuaded he should follow it. 

Can come from number of sources:

  • Courts lower in hierarchy- Seen in RvR. HoL agreed with Court of Appeal in deciding man could be quilt of ****** his wife.
  • Judical Committee of Privy Council- they are not part of court heirarchy but their decisions are respected and may be followed.
  • Obiter dicta- R v Howe ruled that duress could not be a defence to murder. In obiter, Lords also said it could not be used in charge of attempted murder. Later in R v Gotts defendant tried to use duress when charge with attempted murder but obiter was followed.
  • Dissenting judge- where the majority judges are not followed.
  • Other country courts- where countries use same ideas of common law as our system.
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The Hierarchy of the courts

In england and wales courts operate very rigid doctrine of judicial precedent which has the effect that:

  • every court is bound to follow any decision made by a court above it.
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The Hierarchy of the courts


Since 1973 ECJ is highest court affecting us.

For points of european law, a decision made by them is binding on all other courts.

There a re laws which are unaffected by EU law and for these Supreme court is supreme.

They can overrule their own decisions if it feels necessary. 

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The Hierarchy of the courts


Most senior national court.

Binds all other courts below it.

Not bound by its own past decisions under the Practice Statement as laid out in London Street Tramways vs London County Council.

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The Hierarchy of the courts


Has 2 divisions Civil and Criminal.

Both bound to follow ECJ and HoL.

They must follow their own decisions though there are 3 exceptions which are laid out in Young v Bristol Aeroplane Ltd.

The Criminal division is more flexible because individuals liberty is at risk.

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The Hierarchy of the courts


3 divions- Queens Bench, Chancery and Family.

Bound by higher courts.

Bound by their own decisions although they operate with similar exceptions to those of the Court of Appeal.

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The Hierarchy of the courts


Bound by all courts above it and binds all lower courts.

High court judges do not have to follow each others decisions but usually will.


Crown Court, County Court and the Magistrates Court.

Bound to follow decisions by all higher courts.

They do not create precedent.

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The House of Lords

Origanlly view was House of Lords had right to overrule past decisions, but this gradually changed.

In London Street Tramways v London County Council House of Lords held that certainty was more important than individual hardhsip. So from 1898 to 1966 they were bound by their own decisions unless the decision had been made per incurium.

This was not felt to be satisfactory. Law could not change with changing social conditions. The only way to change it was by making an new Act which is time consuming.

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The House of Lords


Realised HoL should have more flexibility. The critical date for this is 1966 when the Lord Chancellor issued a Practice Statement announcing a change to rule in London Street Tramways v London County Council. 

It gives the House of Lords more flexiblity to depart from their decisions when it seems right to do so.


HoL reluctant to use the power especially in first few years. First major case was not until 1972 in Herrington v British Railways Board which involved duty of care owed to a child tresspasser. In earlier case of Addie v Dumbreck it was decided the ocupier would only owe duty of care if injuries were caused recklessly or deliberatley. In Herrington Lords held that social and physical conditions had changed and so should the law.


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The House of Lords

Still reluctance to use as shown in case of Jones v Secretary of State. 4 out of 7 judges said the earlier decision was wrong. Despite this the Lords refused to overrule, preffering to keep idea that certainty was more important. 


Practice Statement stressed criminal law should be certain. House of Lords did not rush to overrule any judgement in this area.

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The Court of Appeal


Both divisons of CoA  are bound by ECJ and HoL.

Been many attempts in past by Lord Denning to argue that the CoA should not be bound by HoL. As shown in case of Davis v Johnson.


Court must take into account any judgement made by European Court or Human Rights.

Our law must be in line with both.


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The Court of Appeal


First rule s divisions of the CoA will not bind the other division. 

Young v Bristol Aeroplane Co Ltd laid out 3 exceptions CoA could use to avoid their own decisoins:

1.Where there are conflicting decisions in past CoA cases, they can choose which 1 to follow.

2. Where there is a decision of HoL which overrules CoA decision, the court must follow the HoL

3.Where decision was made per incuriam.

Rule in Youngs case was confirmed in Davis v Johnson where CoA refused to follow a decision regarding interpritation if the Domestic Violence and Matriminial Proceddings Act. However the HoL said they had to follow their own past decision because it did not come under 3 exceptions. CoA have not since challenged the Youngs rule.

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The Court of Appeal


As well as using exception from Youngs case, they can also refuse to follow past decision of its own if the law has been misapplied or misunderstood. This extra rule applies because people's liberty are at risk.

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Distinguishing, Overruling and Reversing


Method to avoid past decision that would otherwise have to be followed.

Judge looks at facts of one case and another and sumarises that though they are similar they differ on certain points. He then is not bound by the previous case.

Shown in Balfour v Balfour and Merrit v Merritt. Both cases involved a wife making a claim against her husband for breach of contract. Balfour failed because there was no legally binding contract there was only a domestic arrangement. Merritt was successful because the court held that the 2 cases differ on the point that Merritt had a legally binding contract in writing. This distinguished the cases.


Where court in later case states legal rule decided in earlier case was wrong. A higher court can overrule decision of lower court eg HoL overruling CoA. Shown in Pepper v Hart where HoL ruled that hansard could be consulted. This was overruled from decision in Davis v Johnson.

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Distinguishing, Overruling and Reversing


Where court higher up in hierarchy overturns decision of lower court on appeal in the same case.

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Judicial Law Making


Most rules which govern formation of contracts come from decided cases.


Has been developed and refined by judges decisions. Important starting point for this is case of Donoghue v Stevenson.


Judges decisions have also created new crimes eg in Rv R when it was decided that **** within marriage could be a crime.

However there have been many cases where HoL have refused to change the law saying that Parliament should only be made to change it.

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Precedent and Acts of Parliament

if an Act of Parliament is passed and the Act contains a provision that contradicts a previously decided case, the case decision will no longer be in effect as Parliament are the highest source of law making.

This happend when Parliament passed the Law Reform (Year and a Day Rule). Until then judicial decisions meant that a person could only be charged with murder if victim died within a year and a day. The Act said that there was no time limit even if the person died years later.

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Advantages and disadvantages of precedent


1.Certainty- Courts follow past decisions so people know what the law is and how it will be applied. Allows lawyers to advise clients.

2.Fairness in law- Seen as just and fair that similar cases should be decided in a similar way.

3.Precision- As principles of law are set out in actual cases the law becomes very precise. Gradually builds up through different variations of facts in cases.

4.Flexibility-  Room for law to change as HoL have the Practice Statement to overrule cases. Ability to distinguish also gives courts freedom to avoid past decisions and develop the law.

5. Time saving- Precedent is considered to be time saving. Where principles have already been decided, cases with similar facts are unlikely to go through lengthy process of litigation.

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Advantages and disadvantages of precedent


Rigidity- Fact that lower courts have to follow higher courts and the fact that CoA have to follow it's own decisions can make law inflexible so that bad past decisions keep being used. So few cases go to HoL as its costly and time consuming.

Complexity- As there are large amount of cases its not easy to find relevant case law. Also judgements are very long with no clear distinction between ratio and obiter.

Illogical decisions- Use of distinguishing can lead to "hair splitting" so that some areas of law have become complex. Differences between some cases may seem small and appear illogical.

Slowness of growth- Judges are aware that some areas of law are in need of reform, however they cannot make a decision unless there is a case brought to them to be decided. This is1 of the criticsms of the need for the CoA to follow its own decisions as only a few cases go to HoL. May be long wait for suitable case to be appealed.

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Law Reporting

In order to follow past decisions there has to be a record of cases where decisions have been made. 

Today we have All England Series and Weekly Law Reports.

There are also law reports published on the internet.

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Smith E


A good series of slides. The latin, hard to grasp at first, has been helpfully written in bold. Note that the House of Lords is now the Supreme Court (slide 10). There are many instances of the courts departing from the practice statement, which can be added to slide 15. The distinguishing, overruling, reversing section towards the end is also very good.



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This is good but I can’t find any examples for orginal, binding and persuasive precedent. 



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