Judicial Precedent
Judicial precedent is the process whereby judges follow previously decided cases where the facts or point of law are sufficiently similar. It involves the following principles:
First, stare decisis, which means to stand by the decided, whereby lower courts are bound to apply the legal principles set down by superior courts in earlier cases and appellate courts follow their own previous decisions. For example:
- The High Court must follow decisions of the Court of Appeal, which must follow decisions of the House of Lords. The Court of Appeal must also follow its own previous decisions.
Secondly, the binding part of a previous decision is the ratio decidendi (reason for the decision) and it must be followed by judges in later cases. Anything said obiter dicta (by the way) in the original case is merely persuasive because it was not strictly relevant to the matter in issue and does not have to be followed. For example:
- In Donoghue v Stevenson, the claimant suffered food poisoning after drinking from an opaque bottle of ginger beer which contained a dead, decomposing snail. The House of Lords held that a manufacturer owed a duty of care to the consumer that products are safe because the circumstances prevented the consumer from discovering any defects. This is the ratio and Lord Atkin’s “Neighbour Test” was obiter.
Where there is no existing precedent, the court will “declare” the law and the case will become an original precedent, eg:
- Airedale NHS Trust v Bland, where the courts were asked to decide if food and treatment could be lawfully withdrawn from a patient in a persistent vegetative state, and thus allowed to die.
The Court Hierarchy
Stare decisis requires a consideration of the effect of
precedent in individual courts.
1. EUROPEAN COURT OF JUSTICE
Under s3(1) of the
European Communities Act 1972, decisions of the
ECJ are binding, in matters of Community law, on all English courts.
However, it is not bound by its own previous decisions.
2. HOUSE OF LORDS
The House of Lords was not bound by its own previous decisions until
the case of
London Street Tramways v London County County
Council (1898) when it bound itself in the interests of
certainty. Then the
Practice Statement (1966), issued
by the Lord Chancellor, stated that although the House of Lords
would treat its decisions as normally binding it would depart from
these when it appeared right to do so.
3. COURT OF APPEAL
The Court of Appeal is bound by decisions of the House of Lords even
if it considers them to be wrong. In
Young v Bristol
Aeroplane Co Ltd (1944), the Court of Appeal (Civil Division)
held that it was bound by its own previous decisions subject to the
following three exceptions:
- Where there are two conflicting decisions, the Court of Appeal
must decide which to follow and which to reject.
- Where a decision of its own has been impliedly overruled by the
House of Lords.
- The previous decision was given per incuriam (by carelessness or
mistake).
In the criminal division, in addition to the Young exceptions,
precedent is not followed as rigidly because a person’s liberty may
be at stake. In R v Taylor, the Court of Appeal held
that if ‘the law has either been misapplied or misunderstood’ then
it must reconsider the earlier decision. See also
R v Gould.
4. DIVISIONAL COURTS
A Divisional Court is bound by the House of Lords and the Court of
Appeal and normally follows a previous decision of another
Divisional Court but has similar exceptions to the Court of Appeal (Police
Authority for Huddersfield v Watson).
5. HIGH COURT
The High Court is bound by the Court of Appeal and the House of
Lords but is not bound by other High Court decisions. However,
they are of strong persuasive authority in the High Court and are
usually followed. Decisions of individual High Court judges
are binding on the county courts.
6. CROWN COURTS
Decisions made on points of law by judges sitting at the Crown Court
are not binding, though they are of persuasive authority.
7. COUNTY COURTS AND MAGISTRATES’ COURTS
The decisions of these courts are not binding.
8. THE EUROPEAN COURT OF HUMAN RIGHTS
Under the Human Rights Act 1998, English courts must now have regard
to decisions of the European Court of Human Rights. In Re
Medicaments, the Court of Appeal refused to follow a decision
of the House of Lords in R v Gough because it was different
to decisions of the ECHR.
Persuasive Precedents
A persuasive precedent is one which is not absolutely binding on
a court but which may be applied. The following are some
examples:
(a) Decisions of English courts lower in the hierarchy. For
example, the House of Lords may follow a Court of Appeal decision,
and the Court of Appeal may follow a High Court decision, although
not strictly bound to do so.
(b) Decisions of the Judicial Committee of the Privy Council.
(c) Decisions of the courts in Scotland, Ireland, the Commonwealth
(especially Australia, Canada and New Zealand), and the USA.
(d) Obiter dicta of English judges.
Methods of Avoiding Precedent
These include:
The Practice Statement (1966) for the House of Lords;
Young v Bristol Aeroplane (1944) for the Court of Appeal;
Distinguishing (finding differences in the facts) for use by any court, including trial judges;
Over-ruling, for use by appellate courts;
Reversing, for use by appellate courts; and
Disapproving, where inferior judges criticise a precedent in the hope that it will be reconsidered by a higher court or superior judges criticise a precedent without expressly over-ruling it.