Judicial Precedent

Judicial Precedent

Where the facts of a case are similar to a one which has already been

decided, the judge must follow that previous decision, especially if

the decision was reached by a higher court in the hierarchy. This is

the basis of judicial precedent and is called stare decisis-‘let the

decision stand.’

After hearing a case, a judge presents his written judgement (case

law) which sets out the facts of the case and legal principles used.

The legal principles are set out in the ratio decendi-‘reasons for

deciding.’ The ratio decendi also forms the basis of binding

precedent. Obiter dicta is another part of the judgment and means

‘things said by the way.’ This forms the basis of persuasive

precedent.

For the system of precedent to work there must be strict rules for a

judge to follow. There is a system of hierarchy where higher courts

bind lower courts.

The European Court of Justice binds all UK courts.

The House of Lords is the highest appeal court in UK. Binds all lower

courts and itself unless the decision was ‘per incuriam’ (in error) or

it uses the Practise Statement 1966, which is used very sparingly and

only when it would be just or right to depart from an earlier

decision.

The Court of Appeal binds all lower courts and itself unless under

Young v Bristol Aeroplane Co Ltd where the decision was per incuriam

or where two Court of Appeal decisions conflict or where House of

Lords decision overrules the Court of Appeal.

The lowest court in the hierarchy is the Magistrates court. They are

bound by all higher courts. Its decisions do not form binding or

persuasive precedents.

For the doctrine of precedent to work there must be an accurate record

of law reporting e.g. All England Law Reports and Weekly Law Reports.

When faced with a precedent a judge can do one of four things.

Follow. If the facts are sufficiently similar, the court must follow

the precedent and apply the law in the same way.