Judicial Precedent in Judicial Practice

The doctrine of judicial precedent sits at the heart of the English legal system.

It reflects the hierarchical structure of the courts, within which decisions of higher courts bind those below. Each judgment contains two types of statements. The ratio decidendi is the binding legal principle applied to the case. The obiter dictum consists of comments made “by the way”, which are not binding but may be persuasive.

Although judges are often criticised for “making law” through precedent, the reality is that courts at every level, from the Supreme Court to the Privy Council and Court of Appeal, inevitably shape and refine the law through their decisions.

The Supreme Court and the Practice Statement

The Supreme Court, formerly the House of Lords, is the highest in the United Kingdom. It is bound by the European Court of Justice on matters of EU law and must take account of the European Court of Human Rights in human rights cases.

Historically, the House of Lords was bound by its own decisions, as established in London Tramways v London County Council (1898).

This changed in 1966 when Lord Gardiner issued the Practice Statement, allowing the House of Lords to depart from its previous decisions where necessary to achieve justice.

The Statement was used in Conway v Rimmer (1968) to overrule Duncan v Cammell Laird (1942). The earlier case had been decided during wartime and applying it in 1968 would have caused injustice. Even so, the House of Lords emphasised that departures from precedent should be rare and exercised sparingly.

The Privy Council and Flexibility in Precedent

The Privy Council, which hears appeals from Commonwealth jurisdictions, has also demonstrated how precedent can shift.

In Luc Thiet Thuan v R (1997), the Privy Council followed R v Camplin (1978) on provocation. Later, the House of Lords in R v Smith (Morgan) (2001) overruled Luc Thiet Thuan, holding that juries should consider all characteristics of the defendant.

In Jersey v Holley (2005), the Privy Council returned to the earlier approach in Luc Thiet Thuan, despite being bound by Smith (Morgan). Notably, the same Law Lords sat in both courts.

The area of provocation required clarification, and the Privy Council effectively reset the law without waiting for a House of Lords case. This episode illustrates how judges can refine precedent through practice rather than formal hierarchy.

The Court of Appeal and the Young Exceptions

The Court of Appeal is bound by decisions of the Supreme Court and, ordinarily, by its own previous decisions.

However, the Civil Division may depart from its own precedents in three situations, known as the Young v Bristol Aeroplane (1944) exceptions:

• Where the earlier decision was made in ignorance of a relevant statute or precedent, as seen in Williams v Fawcett (1985).
• Where there is a conflict between two earlier Court of Appeal decisions, requiring the court to choose between them, as in Tiverton Estates v Wearwell (1974).
• Where a previous Court of Appeal decision conflicts with a later House of Lords decision, in which case the House of Lords must be followed, as in Family Housing Association v Jones (1990).

The Criminal Division follows the same principles but places particular emphasis on protecting individual liberty. New criminal legislation often requires the court to create fresh precedents where older ones are inconsistent with Parliament’s intent.

European Courts and the Impact on Precedent

The European Court of Justice (ECJ), created by the Treaty of Rome, has long influenced English courts. Under Article 267 of the Treaty of Lisbon, national courts must refer questions of EU law to the ECJ where there is uncertainty.

Once the ECJ rules, domestic courts must apply the ruling. This was seen in Factortame (No. 2) (1991), where the House of Lords changed its decision considering the ECJ’s interpretation.

The preliminary ruling procedure also shaped domestic precedent in Marshall v Southampton and South-West Hampshire Area Health Authority (1986), where the ECJ held that compensation limits under national law were incompatible with EU law.

Human Rights and the European Court of Human Rights

The Human Rights Act 1998 requires domestic courts to “take into account” decisions of the European Court of Human Rights.

This raised questions about whether domestic courts must follow Strasbourg rulings. In Kay v Lambeth Council (2006), the House of Lords clarified that courts may depart from domestic precedent where a later ECHR decision conflicts with it.

Lord Bingham provided guidance on when domestic courts should follow Strasbourg. Later cases, such as Secretary of State for the Home Department v AF (2009), demonstrated the strong influence of Strasbourg, prompting Lord Rodger’s remark: “Strasbourg has spoken, the case is closed.”

How Judges Make and Amend the Law

Judges refine precedent through three main methods:

• Overruling, where a higher court sets aside a legal rule established in an earlier case.
• Reversing, where a higher court overturns the decision of a lower court on appeal.
• Distinguishing, where a court declines to follow a precedent because the material facts differ. This is one of the most frequently used techniques.

Judges may also draw on multiple precedents to craft a new principle. Understanding how judges apply precedent in practice is essential to mastering the doctrine.

Lord Denning famously attempted to expand the Court of Appeal’s ability to depart from precedent, arguing for greater flexibility. However, Lord Diplock insisted that certainty and predictability must prevail. Denning’s campaign illustrates the tension between stability and judicial creativity.

Conclusion

Judicial precedent remains a core principle of the English legal system.

Although judges follow established rules, they also refine and adapt the law through practice. Whether by distinguishing cases, applying exceptions, or occasionally overruling earlier decisions, judges ensure that precedent evolves to meet the demands of justice.

The doctrine’s strength lies in its balance: stability through hierarchy, and flexibility through judicial craftsmanship.