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Stare decisis, ratio decidendi, obiter dicta Orginal, binding, persuasive Court hierarchy, ECJ HOL, Practice Statement, reluctant, first major use Criminal cases COA, Young V Bristol Criminal division Tools of departure: distinguishing, overruling, reversing advantages disadvantages

Judicial precedent, also known as case law refers to the source of law where past decisions of judges create law for future judges to follow. It is based on the maxim stare decisis which is to stand by what has been decided. The ratio decidendi is the legal resonning behind a judges decision and is binding on future cases. Obiter dicta refers to a judges by the way statement and is not binding but persuasive. There are original, binding and persuasive precedents. An original precedent is when a point of law in a case has never been decided before, then whatever the judge decides will form new precedent for future cases to follow. Binding precedent is when a decision in an earlier case must be followed if the facts of the later case is sufficiently similar and the decision was from a court senior than the court hearing the case. Persuasive precedent is not binding but the judge may consider it and decide to follow it. Persuasive precedents come from courts lower in the hierarchy such as in R V R when the House of Lords followed the decision of the Court of Appeal in deciding that a man could be found guilty of raping his wife. Decisions of the Judicial Committee of The Privy Council is also persuasive such that the decisions in The Wagon Mound (1) and A-G for Jersey V Holley is followed by the courts in later cases. The court hierarchy is the central to the operation of binding precedent. Decisions of the higher courts are binding upon those below them. The European Court of Justices decision on points of European law are binding on all other courts. It is not self-binding. The House of Lords (HOL) is binding on all lower courts and was selfbinding until 1966. In 1898, the courts in London Street Tramways V London

County Council held that certainty in the law was more important than the possibility of an individual hardship caused by having to follow a past decision. This was felt to be not satisfactory as the law could not change to meet changing social conditions. In 1966, the Lord Chancellor issued a Practice Statement which said that while the use of precedent is an indispensable foundation to decide the law, the Lordships nevertheless recognise that rigid adherence to precedent may lead to an injustice. Therefore, the HOL is now able to depart from its own previous decision when it appears right to do so. The Practice Statement was first used in Conway V Rimmer but it only involved a technical point on the discovery of documents. There had been great reluctance to use the Practice Statement as seen in the case of Jones V Secretary of State for Social Services which involved interpretation of the National Insurance Act 1946 and four out of seven judges regarded the decision in Re Dowling as being wrong. However, the HOL refused to overrule and held that certainty in the law was more important. The same attitude was seen in Knuller V DPP. The first major use was in Herrington V British Railway Board regarding the duty of care owed to a child trespasser where the courts did not follow Addie V Dumbreck. From mid-1970s onwards, the courts were more willing to make use of the Practice Statement. In Milliangoes V George Frank Textiles, the judgement in Re United Railways of the Havana where damages could only be awarded in pound sterling was overruled. However, criminal law needs to be certain so the HOL did not rush to overrule judgements in criminal cases. It was first used in R V Shivpuri which overruled Anderton V Ryan on attempts to do the impossible. Lord Bridge said if a serious matter distorted the law, the sooner it is corrected the better. In R V R and G, the decision in Caldwell was overruled on the law of criminal damage regarding recklessness. With the changeover from the House of Lords to the Supreme Court in 2009, today the jurisdiction of all the powers of the HOL and some powers of the Privy Council is exercised by the Supreme Court. The Court of Appeal (COA) is bound by the European Court of Justice and the HOL. It is binding on all lower courts and self-binding, subject to the three exceptions in Young and Bristol Aeroplane Co Ltd but the divisions are not bound by each other. When there are two conflicting past COA cases, the COA can choose which to follow. This can be seen in the case of Starmark Enterprise Ltd V CPL Enterprise Ltd. When there is a decision in the HOL that has

overruled the decision in the COA, the COA has to follow the HOL. Example of a case would be the Family Housing Association V Jones. Another exception would be when a decision is made per incuriam like in the case of William V Fawcett. The Criminal Division as well as using the exceptions in Youngs case, can also refuse to follow a past decision of its own if the law has been misapplied or misunderstood. It is more flexible as individual liberty is involved. This idea was recognised in R V Taylor and R V Gould. Section 2 (1)(a) of the Human Rights Act 1998 also states that courts must take into account decisions of the European Court of Human Rights. Flexibility can be achieved in judicial precedent through the use of tools of departure and ensure that the law continues to develop. Distinguishing occurs when the judge holds that the ratio of a previous case is not applicable to the current case as the material facts are different. In Merritt V Merritt, the court distinguished Balfour V Balfour. The 2 cases were about wives in different situations making claims against their husbands for a breach of contract. Overruling occurs when judges believe that the ratio decidendi in previous cases is no longer good law. In Pepper V Hart, the previous ban on the use of Hansard in statutory interpretation in Davis V Johnson was overruled. Reversing occurs where a court higher in the hierarchy overturns the decision of a lower court on appeal in the same case. The advantages of precedent is that it provides certainty and predictability. It saves time and money and lawyers can advise clients on the likely outcome based on previous cases. It is also not totally rigid as the tools of departure provide some degree of flexibility and enable the law to adapt with modern times. Laws cannot remain static but must be dynamic. The system also allows original precedents to be created to deal with difficult new legal dilemmas. However, there are some drawbacks. The system still can be rigid and bad judicial decisions may be perpetuated for a long time. Change in law will only take place if parties have the courage, persistence and money to appeal their case. There is also a large number of undecided cases and more are added all the time. Judgements are often long and unclear, so finding the ratio is not easy. Judicial precedent also has a retrospective effect. It also promotes laziness as judges only have to refer to previous decisions and not fully consider the matter personally.