What do you know about the Judicial Precedent? Specialist Reading. Read carefully the following text and try to get into the essence.

Read the following text.

Judicial Precedent

Judicial precedent can be defined as the principle whereby judges are required to follow the decisions made in previous cases which have sufficient similarity. Cases decided by lower courts must always follow the precedent set by higher courts.  The aim of stare decisis (Latin for ‘the decision must stand’) is to provide consistency and predictability in the decision-making process of various courts.

The judgment may fall into two parts: the ratio decidendi (the reason for the decision) and the obiter dictum (something said by the way). The ratio decidendi always applies to the precise facts of the case and is binding. In other words, it sets a precedent that must be followed. The obiter dictum is where a judge speculates on what might have happened if the facts had been different. This part of the judgment is persuasive rather than binding and so does not have to be followed. In the High Trees case, Lord Denning decided that the plaintiffs were entitled to payment of the full rent only after the war had ended. This was the ratio decidendi. He speculated that the plaintiffs would not be entitled to the full rent from the start of the war as they had promised to cut the rent by half to ease the defendants' financial difficulties. However, as this was not based on the strict facts of the case, this part of the decision was obiter dictum.

The court hierarchy dictates the way in which judicial precedent operates. Under section 3(1) of the European Communities Act, the decisions made on matters of European Community Law are binding on all courts within the English legal system, including the Supreme Court. If matters of European Community Law are not involved, the Supreme Court is the highest court in the land. The Supreme Court is bound by its own decisions unless the court decides in a particular case that this is not right. This was laid down by Lord Gardiner in the Practice Statement in 1966. Supreme Court decisions are binding on all lower courts.

The Court of Appeal (Civil Division) must follow the decisions of the Supreme Court even if it is considered wrong to do so. In Young v Bristol Aeroplane Co Ltd [1944] KB 718, CA, the Court of Appeal decided it is also bound by its own decisions except where:

• previous decisions in the Court of Appeal conflict. It must then decide which one to follow.
• a decision of its own conflicts with a Supreme Court decision, even if that decision has not been expressly overruled by the Supreme Court.
• a decision of its own was made per incuriam; in other words, by mistake.

The Court of Appeal (Criminal Division) generally has the same rules of stare decisis as the Civil Division. However, because decisions might affect the liberty of the individual, the rules of precedent are not followed as rigidly. This principle was laid down in R v Taylor [1950] 2KB 368, where it was held that if questions involving the liberty of a subject had either been misapplied or misunderstood, the court should reconsider the decision.

The High Court is bound by decisions of the Supreme Court and the Court of Appeal. It is not bound by previous High Court decisions. However, these are of strong persuasive authority and are usually followed. Decisions of High Court judges are binding in the county courts. Decisions made on points of law by judges in the Crown Court are not binding. They are only of persuasive authority, so other Crown Court judges need not follow them. The decisions of the county courts and the magistrates' courts are not binding.

Courts can avoid following a binding precedent in a case by using a legal device called ‘distinguishing’. Cases can be distinguished on either the facts or the points of law. In a case involving a joint enterprise, where two people take part in a robbery, and in the course of the robbery one of the people kills the person they are stealing from, the person who does not actually do the killing may still be liable if he could foresee that this action was likely to follow. If someone is armed with a gun, murder is more foreseeable than if someone is armed only with a stick. In R v Powell (Anthony) and English [1999] 1 AC 1, HL, Lord Hutton made this distinction.

Judicial precedent provides stability and consistency within the legal system. However, there are cases where its rigidity has led to injustices. The arguments are whether these injustices should be rectified by Parliament through a change in the law, or whether it is up to judges to use their skills to avoid a precedent where it would, in the circumstances of the case, be unjust to follow it.