What is a legal or judicial precedent?

Answer 1

A precedent is a legal case establishing a principle or rule that a court or other judicial body adopts when deciding subsequent cases with similar issues or facts.

Court decision that stands as an example to be followed in the future

Answer 2

Judicial Precedent is a system of treating like cases alike to achieve certainty and consistency in the legal system. Judgments consist of the ratio decidendi (binding) where all higher courts in the hierarchy bound the lower courts. It also consists of Obiter Dicta (Persuasion) where the Court of Appeal would often persuade the Supreme Court on decisions.

In order for a system as such to work, requires a well defined hierarchy of the courts and an effective system of law reporting.

Although the European Court of Justice is not part of the UK court hierarchy, it remains to bind all courts on points of European Law.

Up until 1966, the Supreme Court were bound by its previous decisions. However, the Practice Statement 1966 allows the court to depart from previous decisions where it "appears right to do so." An example of this was seen in RvR.

However, there is reluctance by Judges to use this power as seen in C V DPP where it was to be ruled upon how children were treated in a criminal case. Lord Lowry urged caution in this case and stressed "the constitutional role of judges"which is not to create the law. Law is not being updated because of this reluctance. Thus, outdated laws are still active within the British legal system.

The Court of Appeal, however, has far stricter rules upon using precedent. The rule in Young v Bristol Aeroplane states that when civil divisions can depart from a previous decision; The Supreme Court has overruled the previous decision; There are two previously conflicting decisions; and where the previous decision was per incuriam (wrongly decided). The Criminal Division can depart to avoid an injustice as seen in R v Gould.

It was argued for years by the Master of the Rolls at the time (Head of the Civil Division within the Court of Appeal) Lord Denning that the Court of Appeal should have more power in using precedent as very few cases go beyond the Court of Appeal unless it has a matter of public interest.

The system of precedent appears strict but is however rigid in practice. Methods such as distinguishing allows judges to avoid this strictness. This is where the judge ignores original precedent through arguing the differences between the cases.

The High Court differs from most methods and rules as this court can only distinguish and has very little power whatsoever within using precedent.