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Law Unit 2 P1 M1 Part D1
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Unit 2P1 M1 Part D1
Thea Chisholm
Judicial Precedent
P1
JP
JP is used in courts to set an example of punishments to give in order to make the procedure
fair and equal. JP is in place to reduce uncertainty in court so when one judge is to make a
decision, the other judges would potentially be obliged to follow their methods of cases that
are believed to be similar.
The Doctrine of Precedent
The doctrine of precedent is bases on the principle of stare devises. This is Latin for ‘stand
what has been decided’ and refers to the idea that decisions in courts should follow past
decisions from previous cases, creating a fairer law system. Once the judge has made the
decision based on the precedent they are required to give a speech with an explanation of
their decision and stating a summary of facts and the arguments given. When stating the
facts in the speech this is known as the ratio decidendi. In the rest of the speech the judge
talks about how they reached their decision which is known as the obiter dicta. When
presenting the obiter dicta, the judge could give a hypothetical situation which would
affect/change the final decision. Once the judge has finished their speech, it is recorded so it
can be used as a JP which other judges can use in future cases, however it does not have to
be used or considered in a similar case.
How Precedent works
When setting precedent there are three categories it can fall under depending on when it is
set. Persuasive precedent is not mandatory to follow and is more set for guidance for judges
in similar situations but the case could be seen as too different to use a persuasive
precedent but could potentially use the same approach.
Types of Precedent
Original precedent is first to be made so there are no previous precedents that relate to the
case enough to be used in court. An example of original precedent is the Airedale NHS Trust
V Bland (1993). Tony Bland was involved on the Hillsborough crush which subjected him to a
vegetative state. The doctors saw no improvement and requested from the courts
permission to withdraw his life support. The courts saw this as the intention to cause death,
however, there was a duty to act. The State was ruled futile and the NHS was allowed to
withdraw his life support.
Binding precedent is made by a higher court and is handled the same way as the previous
case. In R V Gotts (1982) a 16-year-old boy attempted to kill his mother. He claimed it was
due to his father threatening to shoot him if he didn’t. The boy was charged with attempted
murder. When the judge was making the decision they informed the jury not to consider the
matter. As the jury was not given a say in the case, Gotts plead guilty and appealed due to
the fact the defense of the duress was not available. The case was dismissed as there was
no stated English authority which dealt with duress directly when being charged for
attempted murder.
, Unit 2
P1 M1 Part D1
Thea Chisholm
If a case is more complex than the precedent set, or the cases are too different the judge
can say the precedent doesn’t work for that case, however, they have to have a valid reason
to not use the precedent. This is called distinguishing. This is when the judge avoids using a
previous precedent as the facts relating to the cases are significantly different.
Persuasive precedent is not binding on the court but if the judges feel it necessary the
judges can use it as a precedent in later cases but they are not bound to. Case decisions
from lower courts are usually persuasive precedent as they are bound to follow precedents
from higher courts. Balfour v Balfour 1919 and Merrit V Merrit 1970 are similar cases,
however, the judge found a slight different in the Merrit V Merrit case from the Balfour V
Balfour case (original precedent), so the judge did not have to follow the precedent.
The Hierarchy of the Courts
Most courts are bound to follow the original precedent set by the court above them. This
does not apply to the European Court as it is the highest court. Courts that hear appeals are
also bound to the original precedents that they have set. For example, the Court of Appeal
and Divisional Courts are all bound by themselves, as they hear appeals and decide the
outcome, as well as being bound by the courts above. Magistrates’ Court is the only court
that is bound by all other courts and cannot create precedent as it is at the bottom of the
hierarchy. The Supreme Court has been up for debate on whether it has to follow its past
original precedents or if it can make its own decisions since is high up in the court hierarchy.
The Practice Statement
In 1966 the Lord Chancellor created a practice statement due to the House of Lords needing
more flexibility. The Practice Statement allows the House of Lords to make the decision that
a case previously was wrongly decided and so can change the law. Previously the judges
have had the flexibility not have to follow a case where it appears necessary. However, this
gave little guidance to the House of Lords overruling a previous decision. Due to this the
House of Lords didn’t use the power to overrule a previous decision especially after 1966
after the Practice Statement came out.
The Practice Statement was first used in the Conway V Rimmer (1968) case, however, this
only included technical points and therefore the first complete use was in 1972 in the case
of Herrington V British Railways board. The previous case used for this was Addie V
Dumbreck (1929) however the judge ruled that social and physical conditions were
significantly different in comparison to 1929 and the law should change.
In criminal law, the Practice Statement is also used. An example is in the R V R and G (2003)
case, and the earlier Caldwell (1982) case. The House of Lords used the Practice Statement
to overrule to decision of Caldwell. The Caldwell case states that Caldwell set fire to a hotel
whilst he was drunk causing criminal damage and endangering the public. In the R V R and G
case two young boys set fire to newspapers and burnt them in a bin. The bin was next to the
supermarket and soon it set alight causing £1 million in damage. The House of Lords decided
to overrule the decision of Caldwell as the defendants were unaware of the risk.
Avoiding Precedent
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