The doctrine of binding precedent, or stare decisis, lies at the heart of the English legal system.

In
essence, the doctrine refers to the fact that within the hierarchical structure of the English courts, a
decision of a higher court will be binding on a court below.1 Since September 2009 the Supreme Court2
has replaced the House of Lords so the Supreme Court now stands at the summit of the English court
structure and its decisions are binding on all courts below it in the hierarchy (all future references to the
Supreme Court will include the previous court where appropriate). As regards its own previous
decisions, up until 1966, the Supreme Court regarded itself as bound by its previous decisions. In the
Practice Statement (Judicial Precedent) of that year, however, Lord Gardiner indicated that the Supreme
Court would in future regard itself as free to depart from its previous decisions3 cases in which it has
elected to exercise this discretion (for example, Miliangos v George Frank (Textiles) Ltd (1976), in which
it decided that damages in English court cases did not have to be awarded in sterling). The next court in
the hierarchical structure is the Court of Appeal, but in order to consider its place within the doctrine of
binding precedent, it is necessary to consider its civil and criminal jurisdiction separately. In a civil case,
the situation is that the Court of Appeal is generally bound by previous decisions of the Supreme Court.
Although the Court of Appeal, notably under the aegis of Lord Denning, attempted on a number of
occasions to escape from what it saw as the constraints of stare decisis, the Supreme Court repeatedly
reasserted the binding nature of its decisions on the Court of Appeal in such cases as Broome v Cassell
(1972) and Miliangos v George Frank (Textiles) Ltd (1976). The Court of Appeal is generally also bound by
its own previous decisions but there are a limited number of exceptions to this general rule as set out in
Young v Bristol Aeroplane Co Ltd (1944). These exceptions arise where: (a) there is a conflict between
two previous decisions of the Court of Appeal, in which case the later court must decide which decision
to follow and, as a corollary, which to overrule; (b) a previous decision of the Court of Appeal has been
overruled, either expressly or impliedly, by the Supreme Court, in which case the Court of Appeal is
required to follow the decision of the Supreme Court; (c) one of its previous decisions has been given
per incuriam or, in other words, that previous decision was taken in ignorance of some authority, either
legislative or common law, that would have led to a different conclusion, in which case the later court
can ignore the previous decision in question. Once again, there was an attempt by the Court of Appeal
under Lord Denning to widen these exceptions in Gallie v Lee (1971), but again, the Supreme Court
reaffirmed the limited nature of these exceptions and reasserted the strict operation of the doctrine of
stare decisis. Although, on the basis of Spencer (1987), it would appear that there is no difference in
principle between the operation of the doctrine of stare decisis between the criminal and civil divisions
of the Court of Appeal, it is generally accepted that, in practice, precedent is not followed as strictly in
the former as it is in the latter. English Legal System Further down the hierarchy, the Divisional Court is
bound by the doctrine of stare decisis in the normal way and must follow decisions of the Supreme
Court and of the Court of Appeal. It is also normally bound by its own previous decisions, although in
civil cases it may avail itself of the exceptions open to the Court of Appeal (in Young v Bristol Aeroplane
Co Ltd (1944)), and in criminal appeal cases the Queen’s Bench Divisional Court may refuse to follow its
own earlier decisions where it feels the earlier decision to have been wrongly made. As regards the High
Court, decisions by individual High Court judges are binding on courts inferior in the hierarchy. Such
decisions are not binding on other High Court judges, although they are of strong persuasive authority
and tend to be followed in practice. Although subject to binding precedent from superior courts, Crown
Courts cannot create precedent and their decisions can never amount to more than persuasive
authority. The decisions of county courts and magistrates’ courts are never binding. The operation of the
doctrine of binding precedent is, of course, dependent on the existence of an extensive reporting service
to provide access to judicial decisions. However, it should not be thought that the doctrine is as hard
and fast as it originally appears. The technique of ‘distinguishing’ cases on their facts provides judges
with scope for declining to follow precedents by which they would otherwise be bound. The legal
decision in any case is an abstraction from the immediate facts of the case. If a judge decides, for some
reason, that the facts in the case before him are so different from those of a case setting a precedent, he
is at liberty to ignore the precedent and treat the case in question as not being covered by it. He can
then decide the case as he thinks fit, without being bound by the otherwise binding precedent. Scope
for further uncertainty is introduced by the necessary distinction between ratio decidendi and obiter
dicta.4 The only part that is binding in any judgment previously decided is the ratio of the case: the
actual legal reason for the decision. Anything else in the judgment is by the way, or obiter. Difficulty
arises from the fact that judges do not label their judgments in this way. They do not actually nominate
the ratio of the case. Additionally, their judgments may be of great length, or there may be as many as
five judges delivering individual judgments on the case, and there is no requirement that all the
judgments should agree on the principle of law governing the decision in the case. In any event, it is
later judges who, in effect, determine what the particular ratio of any case was. The problem in relation
to binding precedent is that it is open to later judges to avoid precedents by declaring them to be no
more than obiter statements. There are numerous advantages to the doctrine of stare decisis. Among
these are the following:

(a) It saves the time of the judiciary, lawyers and their clients, since cases do not have to be re-argued –
this also has the benefit of saving the money of potential litigants. (b) It provides a measure of certainty
to law – thus, lawyers and their clients are able to predict what the outcome of a particular legal
question is likely to be in the light of previous judicial decisions. (c) It provides for a measure of formal
justice, to the extent that like cases are decided on a like basis. (d) It provides an opportunity for judges
to develop the common law in particular areas without waiting for Parliament to enact legislation. There
are, however, corresponding disadvantages in the doctrine. Among these are the following: (a) The
degree of certainty provided by the doctrine is undermined by the absolute number of cases that have
been reported and can therefore be cited as authorities – this uncertainty is compounded by the ability
of the judiciary to select which authority to follow, through use of the mechanism of distinguishing cases
on their facts. (b) Law may become ossified on the basis of an unjust precedent, with the consequence
that previous injustices are perpetuated – an example of this is the long delay in the recognition of the
possibility of rape within marriage, which has only recently been recognised. (c) In developing law, it
might be claimed that the judiciary is, in fact, overstepping its constitutional role by making law rather
than simply deciding its application.