The Doctrine Of Precedent

On the face of it, the doctrine of precedent is fairly simple. Judges must follow past decisions to ensure certainty (same cases treated alike) and the Inferior courts must bow to the decisions of the Superior courts decisions of superior courts. The purpose of the doctrine is the need for stability and certainty in law; the wish to do justice to both parties; the need not to usurp the role of the parliament; need to justify decision by reasoned argument; need to base decision on at least one of the issues raised by the parties. The binding power of earlier decisions or precedents varies from those that are merely persuasive and those that are strictly binding. The decision on an earlier case will only be binding on a later case if it: a) contains a statement of law; b) it forms part of ratio decidendi (ground upon which a decision was based); c) it was decided by superior court whose decision is binging; d) it does not contain any significant difference to the latter case. The obiter dicta are merely for notation and do not have any binding influence.


Why the exception in Privy Council case of AG for New Jersey v Holley being favoured by Court of Appeal in R v James (2006) instead of R v Smith (Morgan)? Traditionally defence of provocation requires definition of the artificial reasonable man. The reasonable man of provocation is an issue of paramount concern. If the reasonable man cannot be impotent, pregnant, cannot be mentally unsound, is this fair on the accused if the main reason for his action was basically the traits that the courts refuse to impact on this standard? In R v Smith (Morgan) (2001), the House of Lord held that Luc Thiet Thuan was wrongly decided by the Privy Council decided that if the object of the ridicule or taut is that particular trait, then this reasonable man would carry that characteristics. This standard thus becomes somehow subjective.

However the Privy Council in AG for New Jersey v Holley (2005) disagreed with the with the House of Lords and decided that the reasonable man must be restricted to age and sex, all other characteristics shall not be imported on him. This made the reasonable man an objective standard. The ratio is that any mental conditions are already provided for in under section 2 Homicide Act 1951. The correct defence for such traits as alcoholism or any other mental elements belong to the defence of diminished responsibility. This followed along the line of battered wife in R v Ahluwalia this following the reasoning in Luc Thiet Thuan. Since the element is already provided for, there is no reason for reasonable man under provocation to have those characteristic.

Therefore the Privy Council decision is different from R v Smith. In English courts the Privy Council’s decision are merely persuasive. The decision in R v James did not follow the procedure, why. The decision of the House of Lords in R v Smith (Morgan) met with concentrated academic attack and it became generally accepted that the House of Lords got it wrong. The problem however was that unlike in R v Shivpuri (1986) where the House of Lords had an opportunity to reverse it wrong interpretation in Anderton v Ryan (1985) of the Criminal Attempts Act 1991 in such as way as to render it almost ineffective no immediate opportunity presented itself to reverse R v Smith. Instead the House of Lords elected to make use of an appeal to Privy Council to clarify the state of the English law in relation to the partial defence of provocation. This made the reasonable man an objective standard. To achieve this, the majority in decision in Holley consist of the 12 justices of the House of Lords. Nine of the Privy Council Judges agrees that the decision clarifies the law.

When R v James (2005) and R v Karim (2006) James came before the Court of Appeal they departed from the established procedures and followed the decision of the Privy Council in AG for New Jersey v Holley (2005). Precedent dictates that Inferior courts must bow to the Superior courts, but strict notion is undesirable. In taking the decision the Court of Appeal clearly stated that it was not the court, but the Lords in Appeal in Ordinary who altered the established approach to precedent by recognising that in exceptional circumstances the Privy Council can overrule precedents e.g.

a) All the nine Law Lords in Appeal in ordinary sitting in Holley agreed in the course of their judgements that the result by the majority clarified the definitive English Law on the partial defence of provocation.

b) The majority constitute half the Appellant Committee of the House of Lords;

c) The result of any appeal to the House of Lords in the circumstance is a forgone conclusion.

R v Faqir Mohammed [2005] EWCA Crim 1880 and R v James [2006] EWCA Crim 14 (25 January 2006) In R v James the court sat five strong ‘because they [the case is actually two related appeals] raise a novel and important question of law relating to precedent. Should this court [Court of Appeal] accept that the decision of the Privy Council in Attorney General for Jersey v Holly [2005] UKPC 23; [2005] 2 AC 580: has effectively overruled the decision of the House of Lords in R v Smith (Morgan) 1 AC 146?’


The House of Lords decision is binding on all other courts in the legal system except by the House of Lord itself until 1966. The House of Lord is the Supreme Court in the land and its decisions are the applicable law. The old practice had been established in the 19th century and was reaffirmed in 1898 in London Tramways Co. Ltd v London County Council (1898). The rationale for the old practice was that decisions of the highest court in the land should be final so that there could be certainly in the law and finality in litigation. In 1966 by the Practice Statement (Judicial Precedent 1996) the House of Lords need no longer be bound by its decision. The current practice enables the House of Lords to adapt English Law to changing social conditions and to pay attention to the decisions of the superior courts in the Commonwealth. It was considered appropriate at the time to bring the House of Lords in line with the superior courts of other countries, which are not bound by their own previous decisions. Moreover, any House of Lord decisions can be overridden by Act of Parliament.

The decisions of the Privy Council are not binding on any court, but of strong persuasive authority. Nonetheless, they are to follow the decision of the House of Lords Tai Hing Ltd v Liu Chong Hing Bank (1986).

The Court of Appeal is generally bound by the decisions of the House of Lords and its decisions. Its decisions are also bind on all lower courts. The tradition of the Court of Appeal being bound by its decision has now been altered by series of cases relating to the interpretation of the defence of provocation under s.3 of the Homicide Act 1957. R v Camplin (1978), Luc Thiet Thuan v R (1992) R v Campbell (1997). In addition the HRA gives the court of Appeal the latitude to effective overruled its decision which were decided before HRA came into effect Fiztpatricj v Sterling Housing Association then HL use HRA to extend the right of same sex partners to inherit lesser assured tenancy by including them within the deceased family under the Rent Act 1977. The court of Appeal used s.3 of HRA to extend the right of same sex partners to inherit statutory tenancy under the Rent Act 1977 in Mendoxa v Ghaidan (2002). In D v East Berkshire Community NHS Trust (2004) in which the CA held that the decision of HL in X (Minor) v Bedfordshire County Council (1994) could not be maintained after the introduction of HRA. HL approved the approach in Kay v London Borough of Lambeth (2005). Where is a conflict between two decision the court will decide which one to follow, or if a decision has been decided per incurrion, such decision would not be follows.

The court of appeal (civil division): It decision are binding upon divisional courts of the high courts, individual high court judges and the inferior courts including the employment appeal tribunals. It must follow the decision of the House of Lords (Young vs Bristol Aeroplane Co. Ltd – 1944 KB 718).

The Court of Appeal (Criminal division): It decision are binding upon divisional courts of the high courts, individual high court judges and the inferior courts including the employment appeal tribunals. It must follow the decision of the House of Lords and its own decisions but not rigidly as in civil division because liberty of the appellant is at stake. On the basis of R v Spencer (1981) courts in criminal division are not bound to follow their previous decisions. The decision of the high court is binding on all inferior courts but not on other high courts. High court is bound by the decision of the Court of appeal and the House of Lords. High court decisions are not binding on divisional courts (civil or criminal). The divisional decisions of the high courts are binding on the high court judges sitting alone. Crown court is bound by the decision of the Court of Appeal and House of Lord. Decisions taken by High Court Judges sitting in the Crown Court are generally persuasive and worthy of being used in argument. County courts and magistrate courts do not precedents and they are bound by the decision of superior courts. ECtHR has now becomes precedent in UK Courts and English precedents which are in conflict with the ECtHR is now invalidated.

For each case there is ratio decidendi (the main reason for the judgement) and obiter dictum (obiter dicta (plural) statement made by the way). The are other sources of persuasive authority in books such as Glanvill 12th century, Bracton 13th century, Coke 17th century and Blackstone 18th century.


Common law rules do not require their binding force through a single act of legislation but by a series of legislative acts, it is not so much that the common law continuously changes, but rather the common law is continuously built up from the ratio decidendi of a series of cases. The body of law was not created in one law-making act; instead it is the result of a series of acts, a series which is still being continued. Getting around an awkward precedent should not be beyond the intellectual possibilities of any judge that really tries. If a judge of reasonable strength of mind thought a particular precedent wrong, he, he must be a great fool if he couldn’t get round it (quoted, Paterson, Law Lords). What the CA did in R V James was to lend credence to this quote. The doctrine of precedent ‘evolved’ from following blindly to the courts hierarchy. It was stated in Holley that the House of Lords would have decided the same, but it is not the right of the court of appeal to decide such, but it should be House of Lords to adopt Holley’s decision but in the interest of the party involved, a more flexible stance is much more preferable. Justice delayed is justice denied and the courts hours can be saved. As such the statement of Lord Hailsham remains accurate. Lower tiered courts must follow the higher tiered court’s decisions loyally, but loyalty is towards the judges, and not the cold chambers of the lords.