Precedents: What are they and when are they used?

What is a precedent?

Precedent literally means ‘what went before, let it stand’. There are three types of precedent: original, binding, and persuasive. Precedent is known as a common law, whereby judges, in the interests of fairness and consistency, follow principles established in the previous decisions on a similar legal point of an equal or superior court.

Original precedent

Original precedent arises where the point of law in the case before the court has never been considered before and there has been no previous judicial decision on it. In such cases, the judge must use his or her own discretion in reaching a final judgment. They will generally adopt an approach known as reasoning by analogy, whereby they will looks at cases which involve a similar principle to the one they are dealing with and apply similar rules.

Binding precedent

Binding precedent is ‘normal’ precedent. It requires a court to follow a previous court decision made in a previous case in the same way. For a precedent to be binding on a judge in a later case, the material facts of the two cases must be similar. The precedent is only binding on courts lower or equal to the court where the precedent was made.

Persuasive precedent

Persuasive precedent is where a lower court makes a decision and a higher court can or may be allowed to use the precedent or decision, but they are not legally obliged to. There have been cases where lawyers will bring up evidence to show that the material facts of their case was the same as a decision made in an inferior court. It is up to the judge to decide if the case is sufficiently similar to allow them to take the merits of the case into consideration when they are making their judgment.

How can precedents be avoided?

A judge can refuse to follow a precedent, even if it appears to be binding in the following circumstances:

  • Where the decision was made per incuriam – ie, it was reached in a way which – either through carelessness or forgetfulness – was inconsistent with a statutory provision.
  • Overruling – where a decision made in a lower court is overturned because the judges hearing a case in a higher court do not agree with it. The previous decision will stand but will not be followed in later cases.
  • Reversing – upon successful appeal to a higher court, if the lower court wrongly interpreted the law, the higher court could reverse the lower court’s decision, overruling its statement of law.
  • Distinguishing – where the judge finds that the material facts in the case they are hearing are significantly different from an earlier case. The judge distinguishes the two cases and need not follow the earlier one.

When can precedent be used?

Most cases now heard in England and Wales courts have precedent, as common law and case law have been used since the reign of Henry II in the 12th century. All but the most extraordinary cases have therefore been dealt with by the courts before and formed binding decisions. Precedent is followed if the previous ruling was in a court of equal or higher standing. The High Court and the Court of Appeal are both bound by their own previous decisions, but the Supreme Court, while binding on all the lower courts, can deviate from its earlier decisions.

What is ‘without precedent’?

If a case is ‘without precedent’, it means that this case and its details have not been dealt with by an equal or higher court in the past and therefore cannot be relied upon in determining the persons innocence or guilt. Many of the post 9/11 and 7/7 cases held in UK courts are said to be ‘without precedent’ as the scope and details of the cases had not been previously dealt with by a UK court.