What is the doctrine of judicial precedent? Must judges in all circumstances follow legal precedent?

Judicial precedent works because of good law reporting, the law reports of the 19th Century were very efficient and easily set the precedent for our modern doctrine of judicial precedent. Also in England we have a settled judicial hierarchy due to the Judicature Acts of 1873-75 which created a proper hierarchy of the courts. All the courts are linked to one another, a judge must follow the rule laid down in a previous decision of a higher court. Even if the judge does not agree with the previous ruling he must still follow it, this is called binding precedent. A binding precedent only occurs when the facts of the previous case are sufficiently similar to the second case and when the previous ruling was made by a senior court or a court on the same level as the court hearing the second case. Persuasive precedent is a precedent which is not binding on the court but the judge may consider it and decide it is a correct principle so he is persuaded to follow it. Persuasive precedent can come from courts lower in the hierarchy or statements from previous cases made obiter dicta. A dissenting judgement on a previous case, or the same case which has come from a lower court can create persuasive precedent. Also, persuasive precedent can come from decisions of the Judicial committee of the Privy council, or from decisions of courts in other countries.

Judges do not have to follow judicial precedent in all circumstances, as sometimes they do not agree with the rulings of previous cases. When judicial precedent isn't followed we get distinguishing cases, like the case of Ingram and others v Little in 1961, previously in 1919, the case of Phillips v Brooks had set the precedent, but the Judge in the Ingram v Little trial went against this precedent. However, the Ingram v Little trial did not set its own precedent as the judge's decision was described as 'distinguishing gone mad', In a similar case in 1971 called Lewis v Avery the judge chose to follow the Phillips v Brooks precedent. Distinguishing happens if the judge is able to find sufficient differences between the present case and the previous precedent, if he finds these differences he does not then have to follow the precedent. Courts can also reverse a ruling made by lower courts, in the Sweet v Parsley case of 1968 the decision made by Divisional Court was reversed by the House of Lords. Overruling is also something which goes against Judicial precedent, The Addie v Dumbreck case of 1929 was overruled by Herrington v British Rail overruling is where a court in a later case states that the legal rule decided in an earlier case is wrong. Often, overruling occurs when a higher court overrules a lower courts decision. The House of Lords can use the Practice Statement to overrule a past decision of its own.

One disadvantage of Judicial Precedent is that it is an easy choice for judges as they always have the excuse that they were just following other judges' decisions. The law profession is a very small one and so becomes inclusive and it is hard for new judges to go against precedent without being criticized. Judges often have very different upbringings and backgrounds to the defendant and must often find it hard relate to them. also judges are appointed almost through a system of favours, the way to become a judge seems to be, being sycophantic towards other judges. Another disadvantage is that the law becomes rigid in that the court of appeal has to follow its own past decisions. One advantage of judicial precedent is that the law is constant and so fairer. The certainty of judicial precedent allows solicitors to advise clients on how a case will go, as because of judicial precedent the law has become very precise, and being able to predict the probable outcome of cases is time-saving. Judicial precedent is flexible as the House of Lords can overrule decisions and the ability to distinguish cases gives courts the space to develop the law through avoiding past decisions. I think judicial precedent is important as it does create fairness and as long as it does not become too rigid will continue to provide justice in our courts.