JUDICIAL PRECEDENT

Judicial precedent is the rule that previous judicial decisions or proceedings

must be relied upon for future similar cases. This may also be referred to as case
law.
The doctrine of judicial precedent is based on the principle of stare decisis,
which loosely translates as meaning stand by what has been decided and do not
unsettle the established. The general rule is that all courts are bound to follow
decisions made by courts higher than themselves in the hierarchy, and all
appellate courts are usually bound by their own previous decisions. This supports
the idea of fairness and certainty throughout the courts.
However, precedent can only stand if the reason for the decision is known, so at
the end of a case a judgement is given. This is called the ratio decidendi, which
means reason for deciding. This is what creates the precedent for judges to
follow in future cases.
The remainder of the judgement is called obiter dicta, which means other
things said. These do not create a binding precedent, but could be used as a
persuasive precedent in future cases. The only problem with this is it is hard to
distinguish what is ration decidendi and what is obiter dicta.
The decision made on a point of law that has no previous judicial decision is
called the original precedent. The way in which a judge will come to their decision
in this situation is to look at cases which are similar to the one in uestion. These
cases are not binding on the court but they are persuasive.
What is Binding and Persuasive Precedent?
A binding precedent is a decided case hich a c!urt "U#T $!%%!
b& %a' A case is !n%& binding i$ the %ega% princip%e inv!%ved is the
sa(e and the $acts !$ the case are the sa(e' A %ater c!urt can
circu(vent an inc!nvenient precedent) hich !u%d !therise be
binding) b& distinguishing it !n the $acts !r !n the %ega% princip%e
inv!%ved'
A persuasive precedent is a preci!us decisi!n hich D*E# N*T
have t! be $!%%!ed' The c!urts (a& be persuaded that the sa(e
%ega% decisi!n sh!u%d be ta+en) but the& are n!t !b%iged t! d! s!' An
e,a(p%e !$ a persuasive precedent !u%d be i$ a higher c!urt
decided t! $!%%! the decisi!n !$ a c!urt %!er in the hierarch&) e'g'
The -!use !$ L!rds $!%%!ing a C!urt !$ Appea% decisi!n !r the
C!urt !$ Appea% $!%%!ing a -igh C!urt decisi!n'
Distinguishing) *verru%ing and Reversing
!istinguishing is a "tool" used by judges to avoid following a previous decision,
which they would otherwise be bound to follow, if the facts in the present case
are different. #or an e$ample of distinguishing in practice see %erritt v %erritt
&'()'* and +alfour v +alfour &'('(*.
,verruling is where a higher court in a different, later case overturns a principle
laid down by a lower court. -n .epper v Hart the House of /ords overruled !avis
v Johnson on the use of Hansard.
0eversing is where a higher court in the same case overturns the decision of a
lower court. This can only happen if there is an appeal in the case. -n 0e
.inochet &'(((*, the House of /ords reversed a previous decision of its own for
the first time.
Judicia% La "a+ing
%any areas of our law have been developed by the decisions of judges, for
e$ample, the tort of negligence. The speed at which the law develops can
depend on whether the judge is an active or passive law maker.

1ctive law making can be seen in the case of 0 v 0 &'(('* where the House of
/ords ruled that rape within marriage was a criminal offence. 1n e$ample of
passive law making is seen in the case of 2 v !.. &'((3* where the House of
/ords refused to change the presumption about criminal responsibility of children
under the age of '4, feeling that it was the job of .arliament to make such major
changes to our law.

Advantages and Disadvantages !$ Judicia% Precedent

1dvantages
Certainty 5 -t creates certainty in the law and means solicitors and
barristers can advise their clients on the probable outcome of their case.
Fairness 5 6imilar cases are treated in a similar way, this is in the interests
of justice and fairness.
Time Saving 5 -t saves court time as for most situations there is already
an e$isting solution.
Law Development 5 it allows the law to develop alongside society R v R
&'(('* 5 this case overturned a centuries old legal principle that a man
could not rape his wife.
!isadvantages
Rigidity 5 The system is too rigid and does not allow the law to develop
enough.
-njustice 5 The strict rules of judicial precedent can create injustice in
individual cases
Slow Development 5 The law is slow to develop under the system of
judicial precedent. The law cannot be changed until a case on a particular
point of law comes before one of the higher appellate courts.
Confusion 5 Hundreds of cases are reported each year, making it hard to
find the relevant precedent which should be followed.
Complexity 5 The law is too comple$ with thousands of fine distinctions.