Welcome to Judicial Precedent!
In this chapter, we are exploring how judges make law. While Parliament is the main law-maker in the UK, judges play a massive role by making decisions in court. This system is known as Judicial Precedent. Think of it like a "follow the leader" game: once a high-level judge makes a decision, other judges usually have to follow that same rule in similar cases. This ensures the law is fair and predictable.
1. The Doctrine of Precedent
The whole system is based on a Latin phrase: Stare Decisis. This translates to "stand by what has been decided." It means that judges should look at past decisions to guide them in current cases.
The Two Parts of a Judgment
When a judge finishes a case, they give a long speech (a judgment). This speech is divided into two very important parts:
1. Ratio Decidendi: This is the "reason for the decision." It is the actual legal rule the judge used to solve the case. This is the part that creates binding precedent (the part other judges must follow).
2. Obiter Dicta: This means "other things said" or "by the way." These are comments the judge makes that aren't essential to the final decision. For example, a judge might say, "If the facts had been different, I would have decided like this..." This is persuasive, not binding.
Memory Aid:
Ratio = Rule (The part you must follow).
Obiter = Other stuff (The "by the way" comments).
Quick Review: The Basics
• Stare Decisis: Stand by previous decisions.
• Ratio Decidendi: The binding legal rule.
• Obiter Dicta: Persuasive comments, not binding.
2. The Hierarchy of the Courts
To understand who follows whom, you need to know the "ladder" of the courts. In England and Wales, the higher the court, the more power it has to set precedents.
The General Rules:
1. Higher courts bind lower courts: A decision made in the Supreme Court must be followed by the Court of Appeal, the High Court, and the Crown/Magistrates' courts.
2. Appellate courts usually bind themselves: This means the Court of Appeal usually has to follow its own past decisions.
The Order (From Top to Bottom):
1. The Supreme Court: The highest court in the UK. Its decisions bind every other court below it.
2. The Court of Appeal: Has two divisions (Civil and Criminal). It is bound by the Supreme Court and usually by its own past decisions.
3. The High Court: Binds the lower courts.
4. Inferior Courts: (Crown Court, Magistrates’ Court, County Court). These courts hear the most cases but cannot create precedents. They just follow the rules set by the courts above them.
Analogy: Think of it like a school hierarchy. The Headteacher (Supreme Court) sets a rule. The Deputy Heads (Court of Appeal) must follow it. The Teachers (High Court) follow both the Head and Deputies. The Students (Inferior Courts) have to follow everyone above them!
3. Types of Precedent
Not all precedents have the same "strength." There are three main types you need to know:
Binding Precedent: A rule from a higher court that a lower court must follow if the facts of the case are similar.
Persuasive Precedent: A rule that a judge does not have to follow but might choose to because it is a good idea. This can come from:
• Obiter dicta comments.
• Courts in other countries (like Scotland or Canada).
• Lower courts (a High Court judge might like a rule used by a Crown Court judge).
• The Privy Council (a special UK court that deals with Commonwealth cases).
Original Precedent: This happens when a judge is dealing with a point of law that has never been decided before. Because there is no "leader" to follow, the judge has to create a brand-new rule.
4. Changing the Law: Avoiding Precedent
Sometimes, a judge thinks a past rule is old-fashioned or unfair. They have a few "tools" in their toolkit to avoid following it:
Distinguishing
This is the most common tool. The judge finds that the facts of the current case are different enough from the past case that they don't have to follow the old rule.
Example: In Balfour v Balfour, a husband’s promise to pay money was not a contract because it was a happy domestic agreement. In Merritt v Merritt, the couple was separated and had a written agreement. The judge "distinguished" the cases because the facts were different.
Overruling
This is when a higher court states that a legal rule made by a lower court in a previous case was wrong and should no longer be followed. It wipes out the old rule and replaces it with a new one.
Reversing
This is when a higher court changes the decision of a lower court in the same case on appeal. For example, the Court of Appeal might say a defendant is "Guilty," but the Supreme Court reverses it to "Not Guilty."
Common Mistake to Avoid:
Don't confuse Overruling and Reversing!
• Overruling involves two different cases (an old one and a new one).
• Reversing involves one case traveling up the hierarchy.
5. Exceptions to the Rules (Advanced Concepts)
Don't worry if this seems tricky at first—just remember that even the highest courts sometimes need "escape routes" so they aren't stuck with bad laws forever.
The Supreme Court and the Practice Statement
Until 1966, the House of Lords (now the Supreme Court) was bound by its own past decisions. This made the law very rigid. However, the 1966 Practice Statement (now referred to in Practice Directions 3 & 4) changed this. It allows the Supreme Court to ignore its own past decisions "when it appears right to do so."
The Court of Appeal and Young v Bristol Aeroplane (1944)
The Court of Appeal is usually bound by its own past decisions. However, the case of Young v Bristol Aeroplane set out three exceptions where they can ignore their own previous rules:
1. If there are two past Court of Appeal decisions that conflict, they can pick one.
2. If the Supreme Court has made a decision that effectively overrules a Court of Appeal decision.
3. If the past decision was made per incuriam (by mistake/error because they forgot to look at a relevant law).
6. Evaluation: Is Precedent Good or Bad?
Judges and lawyers often debate whether this system is the best way to make law.
Advantages (The "Pros")
• Certainty: Because judges follow past cases, lawyers can predict the outcome for their clients.
• Consistency and Fairness: Similar cases are treated in the same way, which is a key part of justice.
• Time-saving: Judges don't have to reinvent the wheel for every case; they just look at what was done before.
Disadvantages (The "Cons")
• Rigidity: It can be very hard to change a bad law once it is set by a high court.
• Complexity: There are millions of past cases, making it difficult for lawyers to find the exact "ratio" they need.
• Illogical Distinctions: Judges sometimes use "distinguishing" to make tiny, confusing differences just to avoid a rule they don't like.
Key Takeaway:
Judicial precedent creates a stable legal system through Stare Decisis, but it balances this stability with tools like distinguishing and the Practice Statement to make sure the law can still grow and improve over time.