Judicial precedent: the doctrine of stare decisis, the court hierarchy, ratio decidendi and obiter dicta, binding and persuasive precedent, and the ways of avoiding precedent (overruling, distinguishing, the Practice Statement).

What this dot point is asking

This dot point covers judicial precedent, the system by which the decisions of higher courts bind lower courts. You need to explain stare decisis, the court hierarchy, the distinction between ratio decidendi and obiter dicta, the difference between binding and persuasive precedent, and the ways judges can avoid an inconvenient precedent. WJEC tests both accurate description and evaluation of the doctrine's flexibility and rigidity.

The answer

Stare decisis and the building blocks

Every judgment contains two kinds of statement:

• Ratio decidendi: the legal reason for the decision, the principle of law on which the outcome turns. This is the binding part.
• Obiter dicta: other observations made "by the way", including hypothetical examples and dissenting reasoning. These are only persuasive.

The court hierarchy

The binding effect of a decision depends on the court that made it:

• The Supreme Court (since 2009; formerly the House of Lords) binds all lower courts.
• The Court of Appeal binds the courts below it and, generally, itself.
• The High Court binds the courts below it; Divisional Courts bind themselves.
• The Crown Court, county courts and magistrates' courts do not create binding precedent.

The Court of Justice of the European Union bound UK courts on EU matters while the UK was a member; that binding effect ended with EU withdrawal, subject to retained EU case law arrangements.

Binding, persuasive and original precedent

Avoiding precedent

Judges have four main tools:

• Overruling: a higher court declares a legal principle from an earlier case to be wrong, removing it from the law.
• Reversing: a higher court changes the decision of a lower court in the same case on appeal.
• Distinguishing: the judge finds the material facts of the present case are sufficiently different, so the earlier precedent does not apply (Merritt v Merritt distinguished from Balfour v Balfour because the couple in Merritt had separated, making their agreement intended to be legally binding).
• The Practice Statement 1966: allows the House of Lords, now the Supreme Court, to depart from its own previous decisions "when it appears right to do so", used cautiously in Herrington v British Railways Board and decisively in R v R, which abolished the marital rape exemption.

The Court of Appeal is generally bound by its own decisions, subject to the exceptions in Young v Bristol Aeroplane Co (conflicting Court of Appeal decisions, a later Supreme Court decision, and decisions made per incuriam).

Examples in context

The Practice Statement shows precedent's flexibility at the top of the hierarchy. Before 1966 the House of Lords was bound by its own decisions, which gave certainty but risked perpetuating error. The Practice Statement freed it to depart "when it appears right to do so", and in R v R the House used that freedom to abolish the centuries-old rule that a husband could not rape his wife, recognising that social conditions had changed. Distinguishing shows the same flexibility lower down: Balfour v Balfour held a domestic arrangement between a married couple was not legally binding, but in Merritt v Merritt the court distinguished it because the couple had already separated, so their written agreement was intended to create legal relations. These mechanisms let the common law develop while preserving the certainty that stare decisis is designed to deliver.

Try this

Q1. What is the difference between ratio decidendi and obiter dicta? [2 marks]

• Cue. The ratio is the binding legal reason for the decision; obiter dicta are persuasive remarks made by the way.

Q2. What does the Practice Statement 1966 allow? [2 marks]

• Cue. It allows the House of Lords, now the Supreme Court, to depart from its own previous decisions when it appears right to do so.

Q3. Explain the doctrine of judicial precedent and how judges can avoid following a precedent. [12 marks]

• What the marker wants. Stare decisis, the hierarchy, ratio and obiter, binding and persuasive precedent, then overruling, reversing, distinguishing and the Practice Statement with cases.