The Cases Of A Judicial Precedent

Judicial precedent can be explained as where past decisions of judges are followed in future cases when the facts of the cases are similar. Therefore the legal definition of Judicial precedent can be stated as a courts judgment quoted as a power for choosing a comparable set of facts; a case which provides authority for the legal principle launched in its judgment. It refers to the way in which the law is made and amended through the decisions of judges as there is no particular set of binding rules.

The judicial precedent’s doctrine is based on the principle called stare decisis – to stand upon decisions and by which precedents are commanding and compulsory and must be practiced. This means that lower courts are bound to apply the legal principles set by superior courts in earlier cases. This provides balance and certainty in the law.

A precedent is always based upon the two factors – the ratio decidendi which means a reason for the decision and obiter dictum which means something said by the way and also, the decisions made in the previous relevant cases.

The ratio decidendi of a case is the important part of establishing precedents that binds inferior courts in the hierarchy. When a judge makes his judgement in a case, he outlines the facts which he finds have been proved on the evidence. Then he applies the law to those facts and reaches at a decision, for which he gives the reason (ratio decidendi). Whereas obiter dictum is a decision given by a judge that has only incidental bearing on the case in question and is therefore not binding in later cases. The decision of the judge may vary according to the facts of the case and is not strictly relevant to the matter in the issue in the original case.

The ratio decidendi is the binding part of a judicial decision whereas an obiter dictum isn’t. However, an obiter dictum may be of persuasive (as opposed to binding) authority in later cases.

Even if any difficulty arises, the judge will give reasons for his decision, however he will not always tell what the ratio decidendi of case is, and it is then up to a later judge to figure out (elicit) the ratio of the case. However, there may be disagreement over what the ratio is and there may be more than one ratio. Thus, it is not always easy to differentiate ratio decidendi from obiter dictum when assessing the effects of a particular decision; however, when judicial precedent is used, the judge follows or takes the reference of a decision made in a similar past cases that has already been judged upon and he is ruling the same way using the other case as a guideline.

Thus, law reporting, hierarchy of courts and a method of distinguishing between obiter dicta & ratio decidendi are considered to be the key features of judicial precedent. The general rule of the precedent is that all courts are bound to follow decisions made by their superior courts and appellate courts are usually bound by their own previous decisions. However, certain of the superior courts think themselves as bound by their own verdicts whilst others do not..

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Until 1966 The House of Lords was bound by its own previous decisions when Lord Gardiner LC announced a change of practice. The Practice Statement [1966] 1 WLR 1234 stated that even though the House of Lords would treat its decisions as normally binding, it would move off from these when it appeared right to do so.

A judgment of the House of Lords ties all lower courts but does not consider itself as strictly bound by its past decisions, for eg, in Murphy v Brentwood District Council (1990) the House overruled its previous decision in Anns v London Borough of Merton (1978) on the matter of a local authority’s legal responsibility in negligence to prospect purchasers of property.

The Court of Appeal is bound by decisions of the House of Lords although it considers them to be wrong. However in Young v Bristol Aeroplane Co Ltd [1944] KB 718, the Court of Appeal held that it was bound by its own previous decisions subject to the following three exceptions: i. If there is conflict between own previous decisions, the Court of Appeal must decide which is to be followed or rejected.

ii. The Court of Appeal must not follow its own decision which cannot stand with a decision of the House of Lords even if its decision hasn’t been expressly overruled by the House of Lords.

iii. The Court of Appeal need not to follow its own decision if satisfied that it was given per incuriam (literally, by carelessness or mistake).

The High Court and the county courts are bound by the decisions of the court of appeal.

Principally there is no difference in the application of stare decisis in the civil and criminal divisions of the Court of Appeal. In practice, because a person’s liberty may be at risk, precedent is not followed as strictly in the criminal division however judges tend to follow the decisions of the high court for the sake of certainty. For example R v Taylor [1950] 2 KB 368.

The High Court is bound by the decisions of Court of Appeal and the House of Lords however it is not bound by other High Court decisions. The county courts are bound by the decisions of individual high courts. House of Lords and the Court of Appeal binds Divisional Court and normally follows a previous decision of another Divisional Court but if they believe that the previous decision was wrong, they may depart. For eg. R v Greater Manchester Coroner, ex parte Tal [1985] QB 67.

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The Crown Court judgments are not binding, though they are of persuasive authority. Therefore, Crown Court judges are not obliged to follow them. The decisions made by the judges of county courts and magistrates courts are not binding.

Judicial precedent is one of the most important source of English law. An original precedent created and applied a new rule whereas the later decisions, of the higher courts, can have a number of effects upon precedents. Particularly they may be:

Reversed: where on appeal in the same case, the decision is reversed and the appeal court substitute its own decision.

Overruled: Overruling can occur if the previous court fail to apply law correctly, or because the later court considers that the rule of law contained in the previous ratio decidendi is no longer required, then a higher court can overrule a decision made in an earlier case by a lower court. For example, the Court of Appeal can overrule a past High Court decision.

A refusal to follow: the court may refuse to follow the earlier decision especially when it is not bound by the decision or cannot overrule it but doesn’t wish to follow it.

Distinguished: Judges use distinguishing as a tool to avoid following a earlier decision which they would otherwise be bound to follow. It helps to keep judicial precedent and the law flexible.

Where a judge founds that the material facts of the present case to be considerably different from the earlier case, then he may distinguish both the cases and refuse to follow previous decision. For eg. Merritt v Merritt (1971) and Balfour v Balfour (1919)

Explained: a judge may seek to study or discuss a past decision before applying it or distinguishing it, thus the impact of the previous case is diverse in the circumstances of the current case.

A decision which is reached per incuriam is one reached by carelessness or mistake, and can be avoided. For eg. Morelle v Wakeling [1955] 2 QB 379

However, this rule does not allow the Court of Appeal to ignore decisions of the House of Lords.

There are three types of Precedent, Original, Binding and Persuasive and are used instead of statutory law in civil cases.

Original Precedent is one where the point of law is absolutely new and has never been decided before, means a new case that has never been in trial, the decision then judge comes to will form a new precedent for subsequent cases which may be persuasive but not binding on the court.

for eg. the cases heard regarding the 7th July 2005 London bombings were original precedent as the cases were never heard before a UK judge.

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Binding precedent is when a case involves a point of law, the lawyers for both sides will research past cases to try and find decisions that will help their clients win the case. A past decision is only binding if the decision is at the right level in the hierarchy and the facts of the second case are satisfactorily similar and also only the ratio decidendi of the earlier case is binding.

A persuasive precedent is not completely binding on a court but may be applied.

For eg.

a. Decisions of English courts lower in the hierarchy. For eg, the House of Lords may follow a Court of Appeal decision, and the Court of appeal may follow a High Court decision, even though not strictly bound to do so.

b. Decisions made by the Judicial Committee of the Privy Council.

c. Decisions made in the courts in Scotland, Ireland, the Commonwealth (especially Australia, Canada and New Zealand), and the USA. These decisions are usually cited specially where there is a shortage or absolute lack of English authority on a point.

d. Obiter dicta of English judges.

Judicial precedent enables certainty in the law as its detailed. It helps in forecasting the decision only by looking at the existing precedents. The uniformity in the law enables to treat similar cases in the same way which in turn helps to give the system a sense of justice and to make the system acceptable to the public.

However, it may lead to some difficulties in deciding what the ratio decidendi is, mainly when there are a number of reasons. As it is not a set of binding rules, the system limits the growth of the law and can create injustice in individual cases.

Hundreds of cases are reported each year, making it hard to find the relevant precedent which should be followed and thus creates a confusion and becomes too complex with thousands of fine distinctions.

If judicial precedent was a set of binding rules like statutory law it would have not been that flexible. Therefore from the above discussion, we can conclude that, it is crystal clear that the judicial precedent is based on the real facts and situations, unlike legislation or statutory laws where the law is created. Judicial precedent is practical in nature, and therefore it becomes more flexible. Thus we get number of ways to avoid precedents which allows the system to change and to adapt to new situations referring through a wealth of cases.

Thus, judicial precedent is best understood as a practice of the courts and not as a set of binding rules. As a practice it could be refined or changed by the courts as they wish.

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