Importance Of Judicial Precedent

The doctrine of binding precedent is restricted to common law legal systems, yet is integral to their operation. Being that body of law found in the decisions of the courts, common law depends for its application and development upon the ability of judges to locate and follow the decisions reached by courts in previous cases sharing the same material facts as those of the cases currently before them. The doctrine of binding precedent operates by reference to the hierarchy of the courts,' which generally means that courts are obliged to follow relevant decisions of those courts which sit above them in the court hierarchy. It is important to note that while taken for granted within common law systems, binding precedent is alien to civil law jurisdictions.

It is based on the maxim of stare decisis, meaning 'let the decision stand' and its rationale lies essentially in treating like cases alike.' It is important to distinguish between ratio decidendi and obiter dicta. The ratio decidendi is that part of judgment con¬taining the legal principle underlying the decision reached in a case; the reason for the decision. This part of the judgment forms binding precedent for future cases. The term obiter dicta refers to any part of a judgment not forming the ratio decidendi, including dissenting judgments and hypothetical scenarios. While non-binding, obiter dicta may form persuasive precedent in later cases.

The court hierarchy is central to the operation of binding precedent. Decisions of higher courts are binding upon those below them in the hierarchy. Thus, decisions of the Court of Appeal bind those courts below it. This theoretically provides a chain of certainty and clarity as to which previous decisions will be relevant to a court in a given

Section 2 of the Human Rights Act 1998 requires domestic courts to take account of the jurisprudence of the European Court of Human Rights. It does not make decisions of the Strasbourg institutions bind¬ing upon domestic courts, but they are likely over time to impact upon domestic judicial decision-making on matters which give rise to issues under the Human Rights Act. It was also held in R (Kadhim) v Brent Housing Benefit Review Board that the Civil Division is not bound by its own previous decisions where an earlier Court of Appeal assumed a proposition of law to exist which was not subject to consideration by that court.

Although the exceptions set out in Young v Bristol Aeroplane apply to both Civil and Criminal Divisions of the Court of Appeal, a more flexible approach is taken to the application of its own previous precedents by the Criminal Division, due to the fact that individual liberty is often at stake in criminal cases.' The Criminal Division stated clearly in R v Spencer that it need not adhere to past precedent as rigidly as the Civil Division and would depart from its