‘an earlier event or action that is
regarded as an example or guide
to be considered in subsequent
PRECEDENT IN LAW TERMS
Precedent in law means following previous
decisions that have been made in courts.
Judicial precedent is based on the Latin
maxim: stare decisis.
This means ‘stand by what has been decided
and do not unsettle the established’.
Judicial precedents can only be formed if the legal reasons for
previous decisions are stated. These are stated in a JUDGEMENT.
A judgement is a speech made by the judge or judges that
have heard the case which includes:
. Summary of the case facts
. Review of arguments put forward
. Principles of law used to form a decision
. The decision made
. Reasons for this decision
Another name for: the reasons for the decision made.
It can be hard to identify the ratio decidendi from the obiter
dicta in the judgement because they are never specific to
each part it is just a general speech.
IMPORTANT TO REMEMBER:
.Sir Rupert Cross defined the ratio decidendi as ‘Any rule
expressly or impliedly treated by the judge as a necessary
step in reaching his conclusion’.
.Michael Zander defined the ratio decidendi as ‘a proposition
of law which decides the case, in the light or in the context of
the material facts’.
HOW IS THE RATIO DECIDENDI
IMPORTANT IN JUDICIAL PRECEDENT?
.This is what forms the precedent.
.This is the part that judges have
Everything else said in the judgment that isn’t the reason for the
decision is classed as the obiter dicta so this includes: summary of
the case, principles of laws used to form a decision, review of
arguments put forward and the final decision made.
The obiter dicta does not have to be followed in a precedent,
however sometimes a judge will look at it to help them form their
TYPES OF PRECEDENT
. ORIGINAL PRECEDENT
. BINDING PRECEDENT
. PERSUASIVE PRECEDENT
An original precedent means that there has been no
previous cases using similar points of law. Therefore,
whatever the judge decides will form a new
precedent for the future. This is essentially where all
precedents are made. Because this judge will have
no past cases to base his decision on, judges often
look at cases which are closest in principles and may
decide to use similar rules. This is called reasoning by
Binding precedent is a precedent or an existing law that
courts have to follow. Lower courts have to follow
precedents from all courts higher than it. Even if the
judge does not agree with the precedent they have to
follow it. They are only created if the facts of the second
case are sufficiently similar to the original case. They also
are only binding from courts the same level or higher in
This type of precedent does NOT have to be followed but it is
there for the judge to CONSIDER. There are 5 different sources
that judges can be persuaded on their decision by:
. Courts lower in the hierarchy
. Decisions of the judicial committee of the privy council
. Statements that are OBITER DICTA
. A dissenting judgement
. Decisions of courts in other countries
-courts lower in the hierarchy
Usually precedents come from courts higher up in the hierarchy
however, if extra help is needed to come to a decision the judge
can look to what previous cases have been made in the lower
An example (IMPORTANT)-
R v R (1991)
The House of Lords (supreme court) agreed with and followed the
same reasoning as the Court of Appeal which is lower down than
it, in deciding that a man cannot rape his wife.
-decisions of the judicial committee
of the privy council
This court is NOT part of the hierarchy, so it doesn’t
have to be followed. However, their judgements
are often respected and looked at because most
members of the privy council are also members of
the supreme court.
- statements made obiter dicta
This means using other parts, other than just the ratio decidendi, of the
judgement to see how they got to there decision to help make their
It is seen in this case (IMPORTANT)-
In the case of R v Howe (1987) where the house of lords said that
duress could not be a defence to the charge of murder. In the
judgement to this case, they stated that duress would not be available
to defend somebody charged with attempted murder.
Then, later on in the case of R v Gotts (1992) the defendant was
charged of murder and they tried to argue that it was a result of
duress. The Court of Appeal then used the obiter statement from the
case of R v Howe as a guide to not let the defendant use this in his
(Duress- threatening or forcing a person to commit an unlawful act)
- a dissenting judgement
In certain cases, there is more than one judge. Therefore, there is
more than one judgement at the end of the case if all judges do
not agree. The decision is always chosen on the majority of the
judges. However, if there is 3 judges and the decision was 2 judges
to 1, the judge that has the different opinion would have to
explain his reasons in a DISSENTING JUDGEMENT.
If the same case or a later case that is similar is appealed to the
supreme court, they can often look at the dissenting judgement to
see if this decision could have been the correct decision.
-decisions of courts in other countries
This is used where other countries have similar common law as the
UK system. This is mostly commonwealth countries such as:
They often look at similar cases gone through in different countries
to persuade them to follow what has been decided in these
1.What is the definition of a precedent in terms of law?
2.What is a judgement?
3.What is the ratio decidendi and obiter dicta?
4.What are the three type of precedent?
5.What is an original precedent?
6.What is a binding precedent?
7.What five sources are used in persuasive precedent?
8.Why is the case of R v R important in terms of courts
lower in the hierarchy on persuasive precedent?
9.What is an important case to remember about in using
statements made obiter dicta as a persuasive
COURTS IN THE HIERARCHY
European Court of Justice
Court of Appeal
Queens Bench Divisional Court
European Court of Justice
Court of Appeal
.Every court is bound to follow any decision made
by a court above it in the hierarchy.
For example, a precedent from a high court will
be binding on county and magistrates courts.
.Appellate courts (courts that hear appeals) are
bound by their own past decisions.
THE EUROPEAN COURT OF JUSTICE
This is the highest court that affects our legal system.
Points of EU laws can be referred to by courts in England
and Wales. They are only responsible for deciding the
point of law, the case is always decided back in the
court in this country. All of their decisions are binding on
all of our courts in England and Wales. The European
Court of Justice will overrule its own past decisions if it
feels necessary. Therefore, they have a lot more flexible
approach to their past precedents whereas in the UK our
precedents are taken within a rigid approach.
The eldest court in our system is the Supreme
Court which was previously known as the House
of Lords. Its decisions bind all other courts in the
English legal system. It is NOT bound by its own
previous decisions however, they generally still
COURT OF APPEAL
There are 2 divisions: Civil and Criminal. Both divisions are
bound by the European Court of Justice and the
Supreme Court. They usually follow their own past
decisions, the only exceptions are usually to the criminal
division where peoples liberty are involved.
There are 3 divisional courts: Queens Bench, Chancery
and Family. They are all bound by decisions of the
European Court of Justice, the Supreme Court and the
Court of Appeal. They are also all bound by their own
past decisions. Similarly to in the Court of Appeal, there
are similar exceptions when a persons liberty is on line in
the case. An example of this is R v Greater Manchester
Coroner, ex parte Tal (19984).
The high court is bound by decisions of all
the courts above it in the hierarchy. It binds
all courts lower than it.
The judges within the High Court do not
have to follow each others decisions but
These are courts that hear appeals. It
.The European Court of Justice
.Court of Appeal
These courts are quite low down in the hierarchy. It is
unlikely that a decision made in these courts will create a
precedent. However, rulings in the crown court on a
point of law are precedent to magistrates courts but
rarely recorded. Inferior courts include:
. Magistrates Courts
. Crown Courts
. County Courts
COURTS OF FIRST INSTANCE
This refers to any court that the original trial was held at.
Appellate courts do not hear original trails so it includes
inferior courts and the high court.
Appellant courts only deal with cases from the courts of first
An appeal is usually about a point of law, this allows the
appellant court to decide the point of law, which would be
decided by the judge which could create a new precedent.
Therefore, appellant courts are seen to be much more
important than the courts of first instance when creating
1. State the hierarchy from lowest to highest of the civil courts.
2. State the hierarchy from lowest to highest of the criminal courts.
3. Who is bound to who in the hierarchy?
4. What are the European Court of Justice responsible for?
5. Do the European Court of Justice overrule their own decisions?
6. What was the Supreme Court previously known as?
7. Is it bound by its own decisions?
8. What two divisions are there within the Court of Appeal?
9. Do they follow their own past decisions? What are the exceptions?
10.What are courts called that hear appeals? Which courts are they?
11.What are inferior courts? List the three.
12.Can precedents be created in an inferior court?
13.What is a court of first instance?
14.What are the three divisional courts?
15.Who are they bound by? Are they bound by themselves? Exceptions?
16.What court does the high court bind?
17.State a fact about High Courts decisions.
THE SUPREME COURT
The main argument about the supreme court and judicial
precedent is to which extent the court should follow its own past
decisions. Originally, years ago the house of lords had the right to
overrule its previous decisions. However, in the case of London
Street Tramways v London County Council in 1898 the House of
Lords decided that certainty in the law is the most important.
Therefore, from 1898 to 1966 the House of Lords was bound by its
own decisions unless the decision had been made PER INCURIAM
which translates to IN ERROR. This only refers to where the decision
has been made without considering the effect of a relevant law.
However this was felt to be wrong because the law could not
change to meet social conditions.
THE PRACTICE STATEMENT
In 1966 the lord chancellor issued a practice statement because it
was realised that the house of lords needed more flexibility. The
practice statement announced a change to the rule in London
Street Tramways v London County Council. This allowed the house
of lords to change the law if they believed that it was previously
decided wrongly. They now had the right to only follow an earlier
case when it ‘appears right to do so’.
Example of them using it (important):
Miliangos V George Frank (textiles) Ltd the house of lords used the
practice statement to overrule the previous judgement that
damages could only be awarded in sterling.
THE PRACTICE STATEMENT IN
Criminal law needs to be certain because it is usually about a
persons liberty. Therefore, the House of Lords did not use it at first
freely on judgements involving criminal cases. The first case it was
used in was R v Shivpuri which overruled the decision in Anderton v
Ryan. The interesting point about this case was that it was
overruled in less than a year of it being made. A statement was
made by Lord Bridge to say that whether a law has only been
created 3 months ago or 5 years ago, if it is found wrong it may
aswell be corrected immediately so that no more cases are held
wrong rather than keeping them the same to make the judges
THE HOUSE OF LORDS CHANGING TO
THE SUPREME COURT
The supreme court replaced the house of lords in
2009 and the constitutional reform act 2005
transferred the house of lords powers to the
supreme court. At first they queried whether it
included transferring the practice statement also.
In a case of Austin v London Borough of
Southwark 2010 the supreme court confirmed that
the power of the practice statement was
included when the powers were transferred.
DECISIONS MADE ABOVE THE COURT
Decisions made in The Court of Appeal are bound by decisions of The
Supreme Court and European Court of Justice. Lord Denning argued
that the Court of Appeal should not be bound by the House of Lords
because barely any cases get up to the Supreme Court, there is
probably only about 50 a year therefore the cases that the Court of
Appeal will have to use as a binding precedent are very likely to be
100’s of years old which may mean they don’t fit in with the current
social attitudes. An example of this is in the case of Miliangos v
George Frank Textiles Ltd the Court of Appeal under Lord Dennings
leadership refused to follow a decision made in the House of Lords
that said that compensation could only be paid in sterling. Lord
Denning realised that the economic state of the world had changed
and sterling isnt a stable currency to always be considered the right
THE COURT OF APPEALS OWN
The 2 divisions criminal and civil in the Court of Appeal do not bind
each other because they generally do not overlap. However, within
the 2 divisions the decisions are usually binding, ESPECIALLY CIVIL
LAW. This was confirmed in the case of Young V Bristol Aeroplane Co.
Ltd (1994) the only exceptions are:
. Where there are conflicting decisions in the past Court of Appeal
cases so the court can choose which one it will choose to follow and
which it will reject.
. Where there is a decision of the supreme court which effectively
overrules a Court of Appeal decision the Court of Appeal must follow
the decision of the Supreme Court.
. Where the decision made was PER INCURIAM, that is carelessly or by
mistake if they didn’t consider a relevant law.
These rules from the case of Young were also
confirmed in the case of Davis V Johnson (1979).
The case of Davis V Johnson included the Court
of Appeal refusing to follow a decision that had
been made only days before this one. The case
was appealed to the supreme court where the
law lords ruled that the Court of Appeal had to
follow its previous decision, which confirmed the
ruling that was set in the case of Young.
The criminal division is very similar and still use the
exceptions of following its own past decisions that
were stated in Young’s case however they can
also refuse to follow a past decision if the law has
been ‘misapplied or misunderstood’. There is an
extra exception because in criminal cases it is the
involvement of a persons liberty.
In order for past decisions to be followed there needs to
be a record of all past cases. A law report is a written
account of everything that happens in the court, the
judgement. At one point they were called yearbooks
and written in French then they were developed further
to be only written by individuals to make a business out
of selling them to lawyers. After that, the Incorporated
Council of Law Reporting was established which is now
controlled by the courts. Reports are also now available
1. Do the Supreme Court feel they should follow its own past decisions?
2. What case made the House of Lords decide that certainty of the law is the most important so
made the House of Lords bound by its own decisions?
3. What was the exception? what does it mean? (latin)
4. Were people happy with this? Why?
5. What was issued as a result of noticing more flexibility was needed? By who? What year?
6. What did the Practice Statement allow?
7. Example of the use of the Practice Statement?
8. In terms of criminal cases was the Practice Statement commonly used?
9. What was the first criminal case that used the Practice Statement? What is interesting about it?
Who made a statement after this and what was it saying?
10. When did the Supreme Court replace the House of Lords?
11. What act transferred its powers? Did it include Practice Statement in powers?
12. What was the Court of Appeals argument about being bound by the House of Lords/Supreme
13. What case did Lord Denning refuse to follow a precedent on?
14. What two divisions are there within the Court of Appeal? Do they bind each other? Why?
15. Within the divisions are the decisions binding? Which division especially?
16. What case ruled out about the past decisions being binding and what exceptions there were?
17. What are the exceptions that were created in the case of Young V Bristol Aeroplane Co. Ltd
18. Do the criminal division of the Court of Appeal use the same exceptions? Why different?
This method can be used by a judge to avoid following a past decision.
If a judge finds that the material facts of their present case are
sufficiently different to the previous precedent, then he is not bound by
that previous case.
An example of this (important)-
Balfour v Balfour (1919)- wife made a claim for her husband to pay her
money to live however in this case the arrangement here was only a
domestic one when they were together with no contract made about it.
However in the case of
Merrit v Merrit (1971)- this too was about a wife making a claim from her
husband however the case facts were different because in this case the
two made the agreement after they had split and it was made in writing.
This involves a court in a later case deciding that the
legal rule used to decide a judgement in a previous case
was wrong. Overruling can occur when a higher court
overrules a decision made in an earlier case at a lower
A prime example of overruling is the law about DOUBLE
This is where the judge does not agree with the previous decision
and states so in their judgement. This occurs when the present
case is related on a point of law however the point of law is not
sufficiently similar for it to be overruled. It can also occur when the
judge is from a court lower down in the hierarchy than the court
that made the original decision because they wouldn’t be able to
overrule a higher courts decision. An example of this is the case of
R v Hudson and Taylor (1971) where a defence of duress was used
in case of perjury which was disapproved in the case of R v Hasan
(2005) where the point of law was about whether the defendant
could still use this defence if he realised that he was putting himself
in a situation where he could have been pressured into
committing a crime, for example joining a gang.
This is where a higher court reverses the
decision of the lower court on appeal.
(makes the law void). For example the Court
of Appeal may disagree with a decision
made in the High Court and have a
different view on that law so they will reverse
the decision from the High Court.
PRECEDENT AND ACTS OF
Judicial precedent isn’t seen as the most important law making. It
is subordinate to statue law, delegated legislation and European
legislation. This means that if an Act of Parliament is passed that
goes against a law made from a precedent in a past case, the
Act of Parliament is what will then be followed and that decision
from the precedent will no longer exist. An example of this is that a
precedent previously stated up until 1996 that a person could not
be charged with murder if the person died a year and day after
being attacked. However in 1996 Parliament passed the Law
Reform (year and a day rule) Act which stated there was no time
limit in which a person could be found guilty of murder even if the
victim died several years later.
1. How do judges avoid following precedent by distinguishing?
2. What example of this is there? What was the difference
between the two cases?
3. What is the term called when a court in a later case decides
that the legal ruled from a judgement in a previous case is
4. What is an example of this?
5. What is disapproving as a form of avoiding precedent? Why is
this used and not overruling? Why else is this used?
6. What case was disapproved? Why?
7. What is reversing? Why is it used?
8. Is Judicial Precedent seen as the most important law making?
9. What effect do Acts of Parliament have on Law made by
Judicial Precedent if they are contradictory?
10.How does the Year And A Day Rule come into this?
Courts follow previous decisions that are commonly
followed. Therefore, people know what to expect from
the law if it is constantly used. Also, because it is case law
they can also apply it to their case better. This certainty is
also useful for lawyers to advise their clients on how likely
their outcome of their case is based on previous case
facts. The importance of certainty is pointed out in the
-CONSISTENCY AND FAIRNESS IN THE
It is seen as fair and morally right that similar cases
are decided in a similar way, this makes every
case equal. Just like in sport, both teams are
treated equally, so both cases using similar facts
should be treated equally. Therefore, the law
must also be consistently used for it to be credible
to apply to all cases.
Precedent is considered as a useful time- saving device. When a
principle of law has been created through a precedent it is
immediately active law. Whereas, if through every case we found
a new principle of law and went through parliament in the process
of primary legislation it would be a very lengthy process. Therefore,
using precedents as a form of law making is probably the quickest
out of any form of law making. In this sense it also saves the actual
court time as they can make their decision much quicker by
looking at any past cases that have similar facts to use as a
There is always room for the law to change here, so if it is wrong it is
easy enough to be corrected. The Practice Statement allows this
to happen because the House of Lords/Supreme Court have the
right to overrule any past cases if they believe it is right to do so.
Also, the process of distinguishing can be used if a judge does not
feel the case facts are similar enough so it is not completely
certain that every past case has to be followed in the future.
In some cases it could be seen as too rigid meaning not as flexible
as it would like to be. This is in the case of lower courts in the
hierarchy having to follow every decision of courts higher than it.
Therefore, bad decisions in the past could be carried on if they are
not brought to light that they are incorrect. There is the added
problem also that not many cases at all ever really reach the
supreme court meaning there is not much precedent to follow
here. Therefore, when there is a case that matches with a present
case it is likely to not be correct decisions because the chance is it
will be hundreds of years old.
There are nearly half a million reported cases therefore it
is not easy to find a relevant one quickly. Once they
have found a case anyway, the judgements are very
complex and long, it never makes it clear which part is
the ratio decidendi and which is the obiter dicta. This is
seen in the case of Dodd’s (1973) where the judge in the
Court of Appeal said they were unable to find the ratio
decidendi at all in the decision to use it.
The use of distinguishing as a way of avoiding precedent
sometimes uses very illogical reasoning for example they
are deciding not to follow a case simply because in one
case it could be a matter of a left arm and in another it
was a left leg. This is commonly seen when the
differences are very small.
-SLOWNESS OF GROWTH
Judges can be aware now that certain parts of the law need
slight changes made or need things added in however, if there
are no cases that reach a high enough court they have nothing to
make their precedent from. Therefore, they are relying on a crime
or civil case to happen. This links in with the idea of the Court of
Appeals argument not to follow the Supreme Courts decisions as
there are barely any precedents made in the Supreme Court so
they can be waiting a long time before they can find a suitable
case to follow.