Starter Activity!

★In your pairs think answer these questions – be ready to share your ideas.

Which case is used to illustrate the literal rule?

What word(s) were interpreted in Adler v

George?
What is an advantage of the purpose
approach?
★You have 3 minutes!!!!!
Judicial Precedent Non-Substantive Law
 Aims & Objectives!
★ At the end of this presentation, you should be able to:

Explain the Describe the

Explain the operation of advantages and
doctrine of judicial judicial precedent, disadvantages of
precedent, including the doctrine and
including. overruling and operation of
distinguishing. judicial precedent.
 Where Does Most Of
The Law Come From
And What Is It Known
As?
 Where Do Our Laws Come
From And What Is It Known
As?
★Majority of our laws come Parliament when they
create new Acts.
★It is commonly known as primary legislation,
statute law, Acts and legislation.
 Background…
Parliament makes a law…

It then becomes illegal to do something…

Someone does that action that it is believed is illegal…

They are taken to court…

The courts realise the law made by Parliament doesn’t really cover that issue but
believe it to be wrong…

The judges create new law or add detail to an existing point of law…
 Background…
★Judicial precedent refers to the source of law where past decisions
of judges create law for future judges to follow.
★This is a major source of law; this is known as:

Common
Case law Precedent Authority
law
 Doctrine of Precedent
★If there has never been a case like yours before a judgement made
by the court would make new law.
★This new law is called a precedent and would generally be
followed by future courts with similar cases.
★Over many hundreds of years involving thousands of cases, the
common law was developed through precedents and although most
of our law now originates via Parliament, common law is still a
hugely important source of law.
 Doctrine of Precedent
★The law of tort and, to a lesser extent, contract is almost
exclusively common law based.
★When researching the law, you will first look to see if there are any
relevant statutes; if there are not, then the common law will prevail.
 Stare Decisis
★The English system and doctrine of precedent is based on the Latin
maxim:
“Stare decsis et non quieta movere”
★Usually shortened to
Stare decisis
★This means to stand by whatever has been decided and do not
unsettle the established
★This supports the idea of justice and fairness and provides a level
of certainty in the law by standing by past decisions.
 Stare Decisis
★When a point of law is the same in the present case, to a previous case,
the court should follow the previous decision made.
★The English legal system is based on custom and the decisions of judges
in cases – common law.
★This is a very important way of making law.
★The doctrine of precedent means that courts must follow the decisions
of the courts above them in the hierarchy or their own past decisions.
★Also, judicial precedent is IMMEDIATE.
★Once a decision is made by a court, from that moment, it is law and
must be followed by later cases.
 Stare Decisis
★As shown in Schweppes Ltd Registrar of Restricted
Trading Agreements (1965) and in Automatic
Telephone and Electric Co. Ltd v Registrar of
Restrictive Trading Agreements (1965).
★A decision was made in the case of Schweppes Ltd
with regards to a point of law, and within hours the
same point of law arose on the case of Automatic
Telephone.
★As the point of law was the same, the judges were
bound to follow the law stated in the Schweppes case.
 Types of
Precedent
 Types of Precedent
★There are three different types of judicial precedent.

Original Binding Persuasive

★You need to know all three of these!

★You may be asked a question on any of them!!!!
 Original Precedent
★If the point of law in a case has never been decided before, then
whatever the judge decides in that case will form a new precedent
for future cases and judges to follow.
★Only on future cases of similar facts - It is an original precedent.
★As there are no past cases, the judge may look at similar cases for
guidance that are closest to the legal principle.
★This method of arriving at a judgement is called reasoning by
analogy.
★An example of this is Caparo v Dickman (1990).
 Binding Precedent
★This is a precedent from a previous case that must
be followed, even if the judge does not agree with
the legal principle.
★A binding precedent is only created when the facts
of the second case are sufficiently similar to the
original case.
★The decision must also have been made by a court
senior to, or in some cases, the same level of the
court hearing a later case.
 Persuasive Precedent
★This is a precedent that is not binding on the court but the judge may consider
it and decide it’s the correct principle so he is persuaded that he should follow
it.
★Persuasive precedent can come from a number of sources:
Decisions Decisions
Courts of the Statements A of the
lower in judicial made dissenting courts in
the committee obiter judgement other
hierarchy of the dicta countries
Privy
Council
 Persuasive Precedent
Source Detail
• R v R (1991) - A man can be guilty of raping his wife.
Courts lower in • The House of Lords agreed with and followed the same reasoning as the
the hierarchy Court of Appeal.

Decisions of the • This court is not part of the hierarchy of the court system, so its decisions are
judicial not binding.
committee of • Many of its judges are also members of the Supreme Court so the judgements
the Privy of the Privy Council are treated with respect and often followed.
Council
• Statements made in a judgement that were not part of the point of law in
Statements deciding the case.
made obiter • R v Howe (1987) – The House of Lords ruled that duress could not be a
dicta defence to a charge of murder.
 Persuasive Precedent
Source Detail
• When a case is decided by the majority of judges, for example
A dissenting in the Court of Appeal a majority of 2 judges to 1, the judge
judgement who disagreed will explain his reasons.
• This is a dissenting judgement.

Decisions of • This is especially so where the other country uses the same
the courts in ideas of common law as in our system.
other • This applies to Commonwealth countries such as Canada,
countries Australia and New Zealand.
Hierarchy of the
Courts
 Hierarchy of the Courts
★In England and Wales our courts operate a very rigid doctrine of
judicial precedent with the effect that:

Every court is bound to

In general, appellate
follow any decision made
courts are bound by their
by a court above it in the
own past decisions.
hierarchy.
 Two Exceptions to the Rule
★Lower courts in the hierarchy are not bound to follow decisions by
the English Appellant courts when:

When there is a decision from

Court of Justice of the When the case involves
European Union, English human rights.
courts must follow that.
 Civil Courts Hierarchy
Supreme Court (formerly House of Lords)

Court of Appeal (Civil Division)

Divisional Courts

High Court

County Court

Magistrates’ Court
 Criminal Courts Hierarchy
Supreme Court (formerly House of Lords)

Court of Appeal (Criminal Division)

King’s Bench Divisional Court

Crown Court

Magistrates’ Court
Courts of First Instance
Civil cases Criminal cases
High Court Crown Court
County Court Magistrates’ Court
Magistrates’ Court
 Appellate Courts
Civil cases Criminal cases
Supreme Court (formerly House Supreme Court (formerly House
of Lords) of Lords)
Court of Appeal (Civil Division) Court of Appeal (Criminal
Division)
Divisional Courts King’s Bench Divisional Court
 Binds all other courts.
Supreme Court
Can overrule itself using the 1996 Practice Statement

Court Of Appeal (Civil Binds all courts below it

Division) Can overrule itself if the Youngs’ Criteria apply
Binds all courts below it
Court Of Appeal
(Criminal Division) Can overrule itself if the Youngs’ Criteria apply or if it is in the
interests of justice
Binds courts below and usually follows own precedents but is not
High Court
bound to.
Divisional Courts Of Binds courts below and themselves, unless, in criminal cases, it would
High Court cause injustice.

Crown Court Does not usually create precedents.

Magistrates’ And County

Does not create precedents.
Courts
You Have a 10
Minute Break!
Judgements
 Judgements
★Precedents can only operate if the legal reasons for past decisions are known.
★At the end of every case the judge (or judges) will make a speech, known as a
judgement, which will include:

Principles
Summary Review of The Reasons
of law used
of the case arguments decision for the
to form a
facts put forward made decision
decision
★The judgement can be a number of pages long.
★Within these sections there is the Ratio Decidendi and Obiter dicta.
 Ratio Decidendi
★Ratio decidendi means - the reason for the deciding.
★This is what creates the precedent for judges to follow in future cases.
★The principles of law referred to are the important part of the
judgement known as ratio decidendi
★This is the only part of the judgement that forms a binding precedent.
★It can be quite hard for future judges, when looking at past judgements,
to determine what was the ratio decidendi from the obiter dicta.
★Within a judgement it is never specifically expressed which part is the
ratio and a judge does not have to give a judgement in a specific order.
 Ratio Decidendi
★There are cases when there will be more than ONE judge so there can often
be more than one judgement/speech:
I. In the courts of first instance – One judgement.
II. Divisional Courts and Court of Appeal – two or three
judges.
III. Supreme Court – uneven number either three, five, seven or
nine.
 Ratio Decidendi
★If the case is about a particularly important topic or complicated point of
law, it maybe that more than one judge wishes to explain his legal reason on
the point.
★If more than one judge has given more than one reason for their decision, this
can cause problems for future judges.
★In this case there will be more than one ratio decidendi.
★Michael Zander says it is – “a proposition of law which decides the case, in
the light or in the context of the material facts.”
 Ratio Decidendi
★It depends on the level of court making the precedent as to whether the ratio
must be followed by a later court or if it should just be considered.
★The ratio decidendi is the part of the judgement that binds, and that courts
and legal professionals will follow, for example in R v Chan Fook (1994).

Case Name Case Facts

A French student was lodging at the house of Mrs Fox who was engaged to the
appellant. Mrs Fox's engagement ring went missing and the she accused the
R v Chan Fook student of stealing it. The appellant interrogated the student during which he
[1994] struck him several times. He then locked him in an upstairs room and
threatened him with further violence if the ring was not returned. The ratio in
this case states that actual bodily harm includes psychiatric injury to the victim.
 Obiter Dicta
★The rest of the judgement (everything but the principles
of law used to form a decision) is known as obiter dicta
which means other things said.
★Judges in future cases do not have to follow this – it is
not binding on the courts.
★Judges can often speculate here on what the decision
could have been were the facts of the case different.
★These facts and opinions can be considered in future
cases but are not followed – known as persuasive
precedent.
 Law Reports
★In order that past decisions can be followed there must be an accurate record
of what those decisions were.
★Written reports of legal cases have existed in England and Wales since the
thirteenth century, but many reports were brief and not always accurate.
★Reports from 1275 to 1535 were called yearbooks, they contained brief
information and were usually written in French.
★From 1535 to 1865 cases were reported by individuals who made a business
out of selling the reports to lawyers.
 Law Reports
★The level of detail and accuracy varied hugely but some are still used even
today.
★In 1865 the Incorporated Council of Law Reporting was established.
★This is controlled by the courts.
★The reports are now accurate with the judgement noted down word for word.

★The accuracy of the reports help to develop the strict doctrine of precedent.
★These reports are still published today according to the court that the case
took place in.
 Law Reports
Abbreviation Explanation
UKSC A Supreme Court Case
UKHL A House of Lords Case
EWCA Civ A Case Form the Court of Appeal (Civil Division)
EWCA Crim A Case Form the Court of Appeal (Criminal Division)
EWHC A Case from The High Court
Ch The Chancery Division
QB From the Queen’s Bench Division
KB From the Kings Bench Division
 Remember….
If in the exam you are
In addition, you may be
asked about the doctrine
Those are the key topics asked specific parts of
or key features of
for the doctrine of the doctrine to discuss,
judicial precedent. judicial precedent your
such as law report or
answers would need to
ratio decidendi.
cover all sections.
 Starter Activity!
★In your pairs think answer these questions – WITHOUT YOUR NOTES!!!

What does the term ‘stare decisis’ mean?

What does the term ‘ratio decidendi’ mean?

What does the term ‘obiter dicta’ mean?

★You have 3 minutes!!!!!
House of Lords
(Now Supreme
Court)
What precedent does the
Supreme Court,
have to follow and who
does it bind?
It doesn’t have to follow
any precedent and it
binds all other courts!
 HoL –
Supreme Court
★The main debate about the former House of Lords and precedent
was the extent to which it should follow its own past decisions and
the ideas on this changed over the years.
★Initially they had the right to overrule past decisions, but this
flexible approach gradually disappeared over the nineteenth
century, as shown in London Street Tramways v London County
Council (1898) as the Lords held certainty in the law was most
important.
 HoL –
Supreme Court
★From 1898 to 1966 the House of Lords
regarded itself as being completely
bound by its own past decisions.
★The decision could only be questioned
if it had been made per incuriam, which
means
“made in error”
 HoL – Supreme Court
★This error could have been in situations when a decision was made
without considering the effect of a relevant statute.
★This was not felt to be suitable or satisfactory.
★The law, under this process, could not change to meet changing social
conditions or opinions.
★The courts were also unable to change any possible ‘wrong’ decisions.
★The only way to change an unsatisfactory decision by the House of
Lords was to go through the long process of having Parliament pass a
new Act of Parliament.
 The Practice Statement

★It was realised that the House of

Lords should have more flexibility.
★In 1966 the Lord Chancellor issued a
Practice Statement announcing a
change to the rule in London Street
Tramways v London County Council.
 Use of the Practice
Statement
★From 1966 this Practice Statement allowed the House of
Lords to change law if they believed an earlier case had
decided wrongly.
★They had the flexibility to refuse to allow an earlier
case when
“it appears right to do so”.
★This is very vague guidance and gives little guidance as
to when the House of Lords might overrule a previous
decision.
★The House of Lords were reluctant to use this power.
 Practice Statement & Civil
Law
★The first time it was used was two years after it was granted in
the case of Conway v Rimmer (1968) and only involved a small
technical point.
★The first major use was not until the case of Herrington v
British Railway Board (1972).
★This involved the law on the duty of care owed to a child
trespasser.
★This law was originally decided in a 1929 case.
 Herrington v British Railway Board (1968)
CASE FACTS
• A six year old boy was electrocuted and suffered severe burns when he
wondered from a play park onto a live railway line.
• The railway line was surrounded by a fence however, part of the fence had been
pushed down and the gap created had been used frequently as a short cut to the
park.
• The defendant was aware of the gap in the fence, but had failed to do anything
about it. Under existing authority of Addie v Dumbreck no duty of care was
owed to trespassers.
• However, the House of Lords departed from their previous decision using the
1966 Practice Statement and held that the defendant railway company did owe a
duty of common humanity to trespassers.
 Practice Statement Contd
★From the mid 1970’s onwards the House of Lords were more willing to
make use of the Practice Statement. This was shown in:

Miliangos v George Frank

Pepper v Hart (1993)
(Textiles) Ltd (1976)

• The practice statement was used • A previous ban on the use of

to overrule a previous Hansard in statutory
judgement that said damaged interpretation was overruled,
could only be awarded in demonstrating another major use
sterling of the practice statement.
 Practice Statement &
Criminal Law
★The Practice Statement stressed that
criminal law needs to be certain, so it was
not a surprise that the House of Lords didn’t
instantly start overruling criminal
judgements.
★The first use in a criminal case was in R v
Shivpuri (1986) which overruled the
decision in Anderton v Ryan (1985).
 Practice Statement & Crim
Law
★More recently the case of Metropolitan Police Commissioner v
Caldwell (1982) was overruled by the case of R v G and R (2003)
on the law of criminal damage.
★The case of Caldwell created the test for recklessness but in R v G
and R it was held that this was the wrong test to use, and the Law
Lords overruled the previous test.
★Where the Practice Statement is used to overrule a previous
decision, that past case is then ignored.
 The Supreme Court
★When the Supreme Court replaced the House of Lords in 2009, the
Constitutional Reform Act 2005 transferred the House of Lords’
powers to the Supreme Court.
★Initially it was not clear if this included the Practice Statement.
★It was in the case of Austin v London Borough of Southwark (2010)
that it was confirmed that the Practice Statement had been transferred
although it was not used in this case.
★In 2016 the Supreme Court used the Practice Statement to overrule two
previous decisions of the House of Lords in cases on regarding what
date damages should be calculated in the law of tort.
 Remember… You Would Work Through
IF you are asked
how the Supreme
The use of the Court avoids
Before the The introduction
Practice The Supreme following binding
Practice of the Practice
Statement in Civil Court precedent OR
Statement Statement
and criminal law how courts avoid
following binding
precedent.
Court of
Appeal
 The Court of Appeal
★There are two divisions of this court, these are:

Criminal Civil
division division
 The Court of Appeal
★The rules for precedent are different for both divisions and
decisions by one division of the Court of Appeal will not bind the
other division.
★Both divisions of the Court of Appeal are bound by decisions of
the European Court of Justice and the House of Lords (now the
Supreme Court).
★Lord Denning was one of many that tried to argue that the Court
of Appeal should not be bound by the House of Lords and refused
to follow their earlier decisions in many cases.
 CoA – Civil Division
★Decisions within each division will normally
bind their own division, especially for Civil
law.

★This was confirmed in Young v Bristol

Aeroplane Co. Ltd (1944) and the only
THREE exceptions.
★These rules from Young were confirmed in Davis v
 Three Exceptions
Where there are Where there is a Where the decision

TWO
ONE

THREE
conflicting decision of the was made per
decisions in the Supreme incuriam, that is
past Court of Court/house of carelessly or by
Appeal cases, the Lords which mistake because a
court can choose effectively relevant Act of
which one it will overrules a Court Parliament or other
follow and which it of Appeal decision regulation has not
will reject; the Court of been considered by
Appeal must the court.
follow the decision
of the Supreme
Court/house of
Lords;
 CoA – Criminal Division
★The Criminal Division use the three exceptions from Young’s case, which are:

A Supreme Court
Where the
decision
Conflicting decision was
overrules a Court
decisions. made per
of Appeal
incuriam.
Decision.
★The Criminal Division, as well as using exception from Young’s case, can also
refuse to follow as past decision of its own if the law has been – misapplied or
misunderstood.
 CoA – Criminal Division
★This extra exception arises because of in criminal cases
people’s liberty is involved.
★This idea was recognised in R v Taylor (1950) and again in
R v Gould (1968).
★In R v Spencer (1985) the judges said that there should not
in general be any difference in the way that precedent was
followed in the Criminal and in the Civil Division;
 Should The CoA Be
Allowed To Ignore
Decision Of The Supreme
Court?
 Remember… You Would Work Through

Criminal division –
Civil division –
3 exceptions plus
Before Young’s – Young’s – 3
two divisions. misapplied and
exceptions – case
misunderstood –
examples.
case examples.
 Overruling / Distinguishing /
★When a new case is beingFollowing
decided the judges can follow a past decision;
appellant courts can also overrule past cases.
★In addition, it is possible to distinguish the present case from an earlier
one and avoid having to follow it.
★You need to know the following three ways:

Distinguishi
Following Overruling
ng
 Following
★Where there is a previous precedent and the
judge in the present case decides that it is
relevant, the judge should follow that decision.
★This means that he must apply the same
principle of law to the case before him now.
★If the earlier decision is by a court above, or
the same level, the judge should normally
follow it.
 Distinguishing
★This is a method which can be used by a judge to avoid following a past
decision which he would otherwise have to follow.
★If a judge finds that the material facts of the case, he is deciding are
sufficiently different for him to draw a distinction between the present case
and the previous precedent he is then not bound by the previous case.
★This process is shown in the two cases of, Balfour v Balfour (1919) which
overruled the case of Merritt v Merritt (1971).
★Both cases involved the wife's making a claim against her husband for breach
of contract.
 Overruling
★A court in a later case states that the legal rule decided in an earlier
case is wrong.

★Overruling can occur in the same level of court, or when a higher

court overrules a decision made in an earlier case at a lower court.

★For example, the Supreme Court can overrule the Court of

Appeal.
 Precedents & Acts of
Parliament
★Precedent is subordinate to statute law, delegated legalisation, and
European regulations.

★If an Act of parliament is passed that contradicts a past case, the decision
will cease to exist, and the Act must be followed.

★An example of this can be seen by - The Year and a day rule and the
introduction of the Law reform (year and a Day Rule) Act 1996.
Advantages &
Disadvantages
 Advantages of JP
EXPLANATION ADVANTAGE
Because the courts follow past
decisions…. Certainty

It is seen as just and fair that similar… Consistency and fairness in the law
As the principle of law are set out in
actual… Precision

There is room for the law to change… Flexibility

Precedent can be considered a useful… Timesaving
 Disadvantages of JP
EXPLANATION ADVANTAGE
The facts that lower courts have
Rigidity
to…
Since there are nearly half a
Illogical decisions
million…
The use of distinguishing to
avoid… Complexity

Judges are well aware that some… Slowness of growth