Judicial Precedent

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Judicial Precedent

Mehzeb Rahman Chowdhury

Centuries ago when the English legal system was being evolved into how we know it today, the doctrine of precedent came about. It involved King Henry II permanently implementing the circuit system, which was basically a system by which the king sent judges to different parts of the country, which he divided into individual circuits, to resolve disputes among unhappy citizens. If the Royal Court of Justice endorsed a decision of one of the circuits, it became binding on all the others. This is where precedent came into being. The English legal system of precedent is based on the Latin maxim stare decisis et non quieta movere which loosely translated means ‘stand by what has been decided and do not unsettle the established.’ This maxim upholds the idea of fairness and provides certainty in the law. In England and Wales, the courts follow a very rigid doctrine of judicial precedent so that:

  • every court is bound to follow any decision made by a court above it in the court hierarchy; and
  • appellate courts are generally bound by their past decisions.

Precedent looks at the judgment given by the court at the end of the case in order to discover the legal reason for the decision. This legal reason or principle of law is the ratio decidendi of the case and it is the part of the judgment which effectively forms the binding precedent for the future. Binding precedent must be followed by the courts even if the judge in the later case does not agree with the legal principle. However, a decision is only binding precedent if it was decided by a court which binds the court hearing the later case and the facts of the second case are sufficiently similar to the original case.

The remainder of the judgment is the obiter dicta or ‘other things said’ and may be looked at as persuasive precedent. This is not binding on any court but the court may be persuaded to follow it. Persuasive precedent comes from a number of sources, including:

  • decisions of the Judicial Committee of the Privy Council
  • decisions of courts in other countries, especially Commonwealth countries such as Canada, and Australia
  • obiter dicta, particularly where the comment was made in a House of Lords decision.

This was seen in the case of R v Howe where the House of Lords ruled ratio decidendi that duress was not available as a defense to murder. The House also said obiter dicta that duress would not be available as a defense to a charge of attempted murder. Then, in R v Gotts, where the charge was that of attempted murder, the Court of Appeal looked at the obiter dicta of Howe, and decided t follow it.

Since 1973, the highest court affecting the UK’s legal system is the European Court of Justice (ECJ) and a decision made by this court is binding on all domestic courts. The ECJ is not bound by its past decisions. Next in the hierarchy is the House of Lords (HL) and its decisions bind all other courts in the English legal system. The debate about the House of Lords is the extent to which it should follow its own past decisions. The critical date in this argument is 1966 as before then the House of Lords was bound by its own past decisions (London Street Tramways v London County Council (1898)).

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In 1966 the Lord Chancellor issued a Practice Statement announcing a change to this rule. The Practice Statement allows the House of Lords to change the law in later cases if they believe that the earlier case was wrongly decided. However, the House of Lords has been reluctant to use this power since many judges feel that certainty in law is essential.

The first case The Practice Statement was used was Conway v Rimmer (1968), but this only involved a technical point on discovery of documents. However, the first major use of the Statement did not occur until 1972. ...

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