Judicial precedent: stare decisis, ratio decidendi and obiter dicta, the hierarchy of the courts, binding and persuasive precedent, and the methods of avoiding precedent (overruling, reversing, distinguishing).

What this dot point is asking

OCR Component 2 Section A requires you to know how judge-made (common) law works through the doctrine of judicial precedent: stare decisis, the difference between ratio decidendi and obiter dicta, the court hierarchy, binding and persuasive precedent, and the ways judges can avoid or change an earlier decision. The skill is to describe these for AO1 and to evaluate the doctrine for AO3.

The answer

Stare decisis, ratio and obiter

The hierarchy and binding precedent

The courts form a hierarchy, and a court is generally bound by courts above it:

• The Supreme Court (formerly the House of Lords) binds all lower courts and may depart from its own previous decisions under the Practice Statement 1966 "when it appears right to do so" (R v Shivpuri).
• The Court of Appeal binds the courts below it and is generally bound by its own previous decisions, subject to the exceptions in Young v Bristol Aeroplane Co (conflicting decisions, a decision overruled by the Supreme Court, or a decision made per incuriam, through carelessness).
• The High Court, then the Crown, County and Magistrates' Courts, are bound by the courts above and (for the High Court) generally by themselves at the same level only persuasively.

Persuasive precedent and avoiding precedent

Persuasive precedent is a decision a court may follow but is not bound to: it includes obiter dicta, decisions of lower courts, dissenting judgments, and decisions of the Judicial Committee of the Privy Council and foreign common-law courts. Judges can avoid a binding precedent in three main ways:

• Overruling. A higher court in a later case declares that an earlier decision of a lower court (or its own) was wrong, so it is no longer good law (R v Shivpuri overruling Anderton v Ryan).
• Reversing. A higher court overturns the decision of a lower court in the same case on appeal.
• Distinguishing. A judge finds material differences in the facts that justify not following an otherwise binding precedent (Merritt v Merritt distinguished from Balfour v Balfour).

Examples in context

A strong evaluation links the hierarchy and the avoidance methods to the certainty-versus-flexibility debate and concludes.

Try this

Q1. Explain the difference between binding precedent and persuasive precedent. [10 marks]

• What the marker wants. Precise AO1: binding precedent (the ratio of a higher court, which a lower court must follow) versus persuasive precedent (obiter dicta, lower court and Privy Council decisions, dissenting judgments, which a court may but need not follow).

Q2. Discuss the extent to which the doctrine of judicial precedent strikes the right balance between certainty and flexibility. [20 marks]

• Cue. An AO3 evaluation: weigh certainty, consistency and detailed rules against rigidity and dependence on litigation, using the avoidance methods (overruling, distinguishing) and the Practice Statement, then judge whether the balance is acceptable.