1. University of Hertfordshire
Judicial Precedent
Richard O’Neill
University of Hertfordshire

2. Sources of law Do judges make law? Case law and precedent
“..judges do not make law, but merely, by rules of precedent, discover and declare the law that has always been there…”
William Blackstone
Case law and precedent
doctrine of judicial precedent- stare decisis et non quieta movere (stare decisis)
stand by the decision and do not unsettle the established
advantages
disadvantages

3. Sources of law Case law. Doctrine of judicial precedent
Sources of law Case law Doctrine of judicial precedent - stare decisis et non quieta movere (stare decisis) stand by the decision and do not unsettle the established courts are bound in two ways:
higher and
courts
bind
lower
like cases are
decided alike

4. Hierarchy of the courts criminal cases civil cases

5. Hierarchy of the courts

6. Judiciary Roles of a judge to manage case
Court
Judge
House of Lords
Lords of Appeal in Ordinary (Law Lords)*
Court of Appeal
Lord Justices of Appeal*
High Court
High Court (Puisne) Judges*
Crown Court
High Court Judges (QBD)*
Circuit Judges
Recorders
County Court
District Judges
Magistrates’ Court
District Judges (Magistrates’ Court)
Roles of a judge
to manage case
ensure rules of evidence followed
decide sentence in criminal cases/award remedy in civil cases
decides verdict in some cases
decide appeals to higher courts
* Superior Judges

10. Hierarchy of the courts House of Lords
Law Lords
12 Lords of Appeal in Ordinary
Life Peers
sit in the Appellate Committee of the House of Lords
permission required for a case to reach HL
Headed by lord Chancellor 5 or 7 Law Lords
hear cases (criminal and civil) where a point of law is involved (< 100 per year)
decisions binding on all other courts
considers matters of law
not bound by own decisions - can change a legal rule if the point comes before it again
(1966 Practice Statement: power to depart from previous decisions/overrule them when deemed right to do so)

12. Appellate Courts
Divisional courts of the High Court - QB; Chancery; Family
hear appeals from lower courts
2/3 judges sit to hear appeals
QBD hears applications for judicial review ; appeals from Crown Court and Magistrates’ Court; applications for habeas corpus
Court of Appeal
criminal division
deals with appeals from Crown Court
Lord Justices of Appeal
headed by Lord Chief Justice
civil division
deals with appeals from all three divisions of High Court
headed by Master of the Rolls

18. Appeal from Magistrates’ Court
Appeal to Crown Court
only available to defence
conviction/sentence
Appeal to Queen’s Bench Divisional Court
case stated appeals
point of law
Appeal to House of Lords
only if permission (leave) given
Only of a point of law of general public interest

19. Appeal from Crown Court
Appeal to Court of Appeal
defendant
conviction/sentence
only if permission (leave) given by Court of Appeal (typically by single judge)
prosecution
point of law
leniency of sentence
Appeal to House of Lords
only if permission (leave) given
only of a point of law of general public interest

20. Appeal from County Court
Set out in Part 52 Civil Procedures Rules
* ‘Multi-track’ cases (involving large sums or complex points of law) right of appeal to the Court Of Appeal
necessary to have permission to appeal

21. Appeal from High Court
Administration of Justice Act cases can ‘leap-frog’ directly to the House of Lords where case is:
subject to an existing binding precedent of CA or HL
involves a matter of statutory interpretation
permission to appeal must be given by House of Lords

22. Appeal to European Court of Justice
Laws which unaffected by European Law – House of Lords supreme court
Article 234 Treaty of Rome - cases can be referred directly to the European Court of Justice (ECJ) by any English court if a matter of European Law is involved
Judges sit in Luxembourg aided by Advocates-General to advise on the law
ECJ prepared to overrule previous decisions if feel it necessary

23. Precedent Court Courts bound by this court Courts it must follow
Whether bound by own decisions
European Court of Justice
All other Courts
None No
House of Lords
All other English courts
European Court
No (Practice Statement 1966)
Court of Appeal
Divisional Courts and all lower courts
European Court House of Lords
Yes (with some minor exceptions)
Divisional Courts
High Court and all lower courts
High Court
County Court and Magistrates’ Court
All higher courts
Usually follow each other’s decisions
Crown Court
Magistrates’ Court - possibly
Unlikely a decision can create precedent

24. Judicial Precedent Key concepts stare decisis follow
ratio decidendi overrule
orbiter dictum distinguish
binding precedent reverse
persuasive precedent dissent
judgments disapprove

25. Judicial Precedent Ratio decidendi
that part of the decision which is binding is termed the ratio decidendi – the reason for the decision – the part of the judgment that creates law – identified by lawyers looking at the judgement later
Orbiter dicta
things ‘said by the way’ – other parts of the judgement that do not create law
Binding precedent – a precedent that must be followed – a legal principle made in a superior court – depend on sufficiently similar facts (‘on all fours with’)
Persuasive precedent – not binding but judge may consider and be persuaded to follow

26. Judicial Precedent Binding precedent Avoiding an awkward precedent
must be followed
Avoiding an awkward precedent
distinguishing; re-defining a ratio
Persuasive precedent
courts lower in hierarchy
orbiter dicta statements
a dissenting judgment
decisions of the Judicial Committee of the Privy council
decisions from courts in other countries

27. Judicial Precedent Law-making
Use of precedent to create law and develop legal principles
Law of contract
rules come from decided cases
Tort of negligence
major area developed by case law
Donoghue v Stevenson (1932)
nervous shock
Criminal law
development of areas such as ‘intention’
new crimes
R v R (1991)
Medical law
Gillick v West Norfolk & Wisbech HA (1985)
Airedale HA v Bland (1993)
Re A (children) (2000)

28. Judicial Precedent Advantages and Disadvantages
Advantages Disadvantages
certainty rigidity
consistency bulk and complexity
detail/precision illogical distinctions/over-subtlety
flexibility and growth slow growth
time-saving
practicality
Important factors
legal reasons for past decisions must be known
accurate law reporting essential