Does the judicial precedent affect the development of

common law
Judicial precedent is a process whereby the judges follow
the previous decided cases where the facts of the case are
sufficient of similarity. The doctrine of judicial precedent
involves an application of the principle of Stare decisis, to stand
by the decided. In practice, this means that the inferior courts
are bound by to apply the legal principles set down by the
superior courts in earlier cases. This provide consistency and
predictability in law. The decision or judgement of the judge
may fall into two parts, ratio decidendi and obiter dicta. Ratio
decidendi of a case is the principle of law on which a decision is
based. When a judge delivers judgment in a case, he will first
outline the facts which he finds have been prove on the
evidence. He then applies the law to those facts and arrived at
decision, for which he give the reason. While, obiter dicta, other
things to say, is when the judges speculate what is his decision
would have been if the facts of the case have different. The
binding part of a judicial decision is ratio decidendi, an obiter
dictum is not binding in later cases because it was not strictly
relevant to the matter in issue in the original case. However, an
obiter dictum may be of persuasive authority in later cases,
which means that the judge may consider it and decide that it
is a correct principle so he is persuaded he should follow it.
The problem with the system of precedent is that though it
works well for the majority of cases but for a small number of
cases the precedent the judge has to follow may be an unfair
approach to a unique situation. Another problem is that as
society changes economically, technologically or socially the
past precedents no longer are relevant to todays society. So,
there are a range of methods available to allow for exception or
all out change to help the common law to develop. The higher
the courts is in hierarchy the more powers the court has to alter
previous precedents.
Firstly, overruling may occur when a higher court overrule
a decision made in an earlier case by a lower court. For
example, the court of appeal can overrule an earlier high court
decision. Overruling can occur if the previous court did not

correctly apply the law, or because the later court consider that
the rule of contained in the previous ratio decidendi is no
longer desirable. For example, in Pepper v Hart, when the
House of Lord ruled that the hansard could not be consulted
when trying to decide what certain words in an Act of
Parliament meant. This decision overruled the earlier decision
in Davis v Johnson. However, there were some requirement in
the House of Lords and Court of Appeal to overrule an earlier
decision. House of Lords, the highest court in land. It bind all
the English court beneath either criminal or civil cases. The
Supreme Court replaced the long-established House of Lords in
2009 and the rules of precedent are expected to be exactly the
same for the Supreme Court as they were for the House of
Lords before it. The main debate now is about the House of
Lords is the extent to which it should follow its own past
decisions. Originally, the House of Lords had the right to
overrule the past decisions. Until the case of London Streets
Tramsways v London County Council, the House of Lords
held that certainty in law is more important than the possibility
of individual hardship being caused through having to follow a
past decision. This is not felt to be satisfactory, as the law could
not alter to meet changing social conditions and opinions, nor
could any possible wrong decision as stated above be change
by the court.
Until 1966, the Lord Gardiner LC announced a change of
Practice Statement. This practice statement allowed the House
of Lords to change the law when it believed that an earlier case
was wrongly decided. It had the flexibility to refuse to follow an
earlier case when it appeared right to do so. However, this
power have been used sparingly. The first real use of Practice
statement was in 1972 for civil law. The case of Herrington v
British Railways Board overruled the decision of Addie v
Dumbreck. In Herringtons case, the old ratio decidendi was
dispensed with in favour of holding that the duty of care is
owed to children who are attracted onto property by some
object of allurement and are died as a result, therefore
compensation could now be paid. After a great reluctance in the
House of Lords to use the practice statement in R v Secretary
of State for Social Service where the Lord preferring to keep

the idea of certainty is the most important feature of

precedent, House of Lords have showed more willingness to use
practice statement in civil cases. This can be seen in Miliangos
v George Frank where it use practice statement to overrule a
previous decision that damages could only be awarded in
sterling. The practice statement stressed that criminal law
needs to be certain, so it was not surprising that the House of
Lords did not rush to overrule any judgment in criminal cases.
The first use of practice statement was in R v Shivpuri which
overruled the decision in Aderton v Ryan. Even though in
Aderton v Ryan had only decided by one year before, they now
felt that their earlier decision was wrong and that they were
overruling that decision. In other words, House of Lords
recognised that they might sometimes make errors and the
most important thing is then put the law right. These brings UK
practice with that of other jurisdictions such as the US Supreme
Court which is also not bound by its own decisions
Until 2006, it was settled law that judgement of Judicial
Committee of the Privy Council were merely persuasive.
However, the catalyst for this change in the common law rules
of precedent came from comments made by Lord Nicholls in AG for Jersey v Holley. He explicitly that their Lordships were
reformulating the law for England and Wales. This was accepted
de facto (as a matter of fact) to be the case by the Court of
Appeal in R v Mohhammed and de jure (as a matter of law) by
the Court of Appeal in R v James and R v Karimi. These were
the exception cases where the court of appeal took an unusual
decision to follow the ruling by the Privy Council rather than
that of House of Lords.
This leads us neatly to the Court of Appeal which is
directly below the House of Lords. So, it is bound by the earlier
decision of House of Lords even if it consider them to be wrong.
However, Lord Denning have attempts it when he argue that
the Court Of Appeal should not be bound by the House of Lords.
In Broome v Cassel, Lord Denning refused to follow the earlier
decision of House of Lords in Rookes v Barnard, on the
circumstances in which exemplary damages could be awarded.
Besides, Court Of Appeal is bound by its own past decision,
especially for the Civil division. The Civil division does not

bound by the Criminal Division In terms of precedent as they

are different types of law, though they can be persuasive
precedent. In Young v Bristol Aeroplane Co ltd, the court
was bound by its previous decisions subject to the following
three exceptions. Firstly, where its own previous decisions
conflict, the Court of Appeal must decide which to follow and
which to reject and next, the court must refuse to follow a
decision of its own which cannot stand with a decision of House
of Lords even though its decision has not been expressly
overruled by the House of Lord. The third exception is, the court
of appeal need not to follow a decision of its own if satisfied
that it was given per incuriam. Lord Denning again refused to
follow a previous decision of Court of Appeal. In Gallie v Lee.
He stated that it was a self-imposed limitation and we who
imposed it can also remove it. However, he could not get a
majority in the Court of Appeal to support him and in the same
case Russel LJ said that, the availability of the House of
Lords to correct the errors Court of Appeal make it, in
my view, unnecessary for the court to depart from its
existing discipline. After Lord Denning retired, Court of
appeal have no challenge the rule in Youngs case, though it
has made some use of per incurium exception allowed by
Youngs case. In Rickard v Rickard, Court of appeal refused to
follow a case it had been decided as it had misunderstood the
effect of House of Lords decision. Even though it did not follow
its own decision Lord Donaldson said that it would only be in
rare and exceptional cases that court of appeal would be
justified in refusing to follow a previous decision. For a criminal
case, the court can use the exception from Youngs case, can
also refuse to follow a past decision of its own if the law has
been misapplied and misunderstood. This extra exception
arises because in criminal cases peoples liberty is involved. In
R v Taylor, court of appeal held that in questioning involving
the liberty of subject if a full court considered that the law has
either been misapplied or misunderstood then it must be
consider the earlier decision.
Moreover, parliament is the supreme law making body in
Uk, and no one can questioned the validity of a statute or an
Act of Parliament. Should there ever be a conflict between

statute and case-law, then the former will prevail. In essence,

statute law is superior to the case law. Therefore, Parliament is
the body do have the power to overrule the decisions of all the
courts including House of Lords by passing a new act of
parliament. This can be seen in R v Davis. Here the appellant
was convicted of murder solely due to the evidence anonymous
witnesses. This offended the common law principle that the
defendant in a criminal trial should be confronted by his
accusers. Hence, the trial held to be unfair and the conviction
unlawful. A month after this judgement, Parliament passed the
Criminal Evidence (witness anonymity) Act 2008 which
abolish the common law rule. No doubt this act will prove to be
controversial. Parliament is therefore one of the way to
overruled the previous decisions of courts.
Distinguishing is also one of the method which can be
used by a judge to avoid following a past decision which he
would otherwise have to follow. Indeed the development of the
law is induced just two processes, following cases and
distinguish cases. The common law technique is probably the
major factor which ensures the flexibility of the doctrine of
binding precedent. The judge finds that the material facts of
the case he is deciding are sufficiently different for him to draw
a distinction between the present case and the previous
precedent. He is not then bound by the previous case.
Distinguishing does allow judges to develop the law and create
exceptions to a general rule establish in a previous case. Two
cases demonstrating this process are Balfour v Balfour and
Merritt v Merritt. Both cases involved a wife making a claim
against her husband for the breach of contract. Unlike Balfours
case, the second case was successful because the court held
that the facts of the two cases were sufficiently different in
that, although the parties were husband and wife, the
agreement in Merritt was made in writing. This distinguished
the case from Balfour, the agreement in Merritt was not just a
domestic agreement but mean as a legally enforceable
contract.
Furthermore, reversing is the overturning on appeal by a
higher court, the decision of the court below that hearing the
appeal. The appeal court will then substitute its own decision.

This can only be carried out by a court with enough authority.

For example, the court of appeal may disagree with the legal
ruling of the high court come to a different view of the law, in
this situation they reverse the decision made by high court.
This can be illustrated in the case of R v Kingston where the
defendant have consumed a drink that had been spiked by
alcohol. He then perform sexual acts on a young boy who had
been sedated in the bedroom. The court of appeal stated that
the involuntary intoxication would mean defendant lacked of
awareness of committing the crime. When appeal to the House
of Lords, the court reversed the decision of Court of Appeal and
held that intoxication will not be a defence.
There may be another two instances where the courts
might not be bound by its previous decisions. The first instance
concern European Union Law. Section 3 European
Communities Act 1972 requires courts either to refers cases
dealing with Community law to the European Court of Justice or
alternatively to decide the cases themselves in the light of the
previous decision of the European court of Justice. It seems
clear that the court of appeal can ignore a previous decision of
its own which is inconsistent with the European community law
or with a later decision of European court of justice. Secondly,
under section 2(1)(a) of the Human Rights Act 1998
states that courts must take into account any judgment or
decision of the European Court of Human Rights. This can be
illustrated in Re Medicament, the Court of Appeal refused to
follow the decision of the House of Lords in R v Gough because
it was slightly different to decision of the European Court of
Human rights. In the case of Kay v Lambeth LBC, the House
of Lords considered whether or not a lower court should follow
a precedent of a higher court if a Strasbourg judgment made
after the precedent contradicted it. Which should be followed,
the earlier English precedent or the later Strasbourg ruling? The
House of Lords decided that the earlier English precedent
should be followed and leave to appeal against this decision
should be granted. Lord Bingham considered the question in
some depth in a particularly interesting judgement.
As a conclusion, doctrine of binding precedent have
provide certainty and flexibility to the law. In the view of

certainty, as the court follow the past decisions, people will

know what the law is, litigants can assume that like cases will
be treated alike. While judicial precedent is flexible as there is a
room for the law to change by departing from the previous
decision of the courts using the available method can replace
the outdated law by a new and suitable one. Shortly, it prevent
the bad precedent from vicious circle in our law. Therefore, it
have developed the common law.