The English system of precedent is based on case law, which is when law is made

through the past decisions of judges by their interpretation of the law. In most cases, courts
will follow in the footsteps of decisions made in past cases with sufficiently similar facts,
according to the doctrine precedent. This doctrine, also known as stare decisis, states that
courts stick to what has been decided in the past. The basis for a judgement or decision is
the ratio decidendi, or the reasoning, while the rest of the judgement is called the obiter
dicta, or the other things said. There are a few types of binding precedent, such as binding
precedents, which must be followed by a later or inferior court, persuasive precedents,
which are not binding but can be referred to which are made by a lower court or the Judicial
Committee of the Privy Council, such as when R v Howe and Bannister was followed by the
Supreme Court in R v Gotts which stated that a defense of duress was not available for the
crime of attempted murder. Lastly, original precedents can also arise when a point of law
has never been brought up before and a new decision is made because of it.

To determine binding and non-binding precedents, the hierarchy of the courts must
be referred to. Cases start in the court of first instance, where hearing are held. Unhappy
parties may appeal to the appellate courts, such as the European Court of Justice, the
Supreme Court and the Court of Appeal. The Supreme Court, unlike the European Court of
Justice, prioritises certainty rather than flexibility by following past judgements more rigidly,
as seen in London Street Tramways v London County Council, where it was held that
upholding previous precedents was in public interest and would prevail over individual
hardships due to the importance of certainty. Despite this, in practice the courts have many
ways to avoid following precedent, meaning that the current system of precedent functions
based on a balance of certainty and flexibility. With a correct balance, this system has many
advantages. However, when misapplied, this system can bring about an equal amount of
disadvantages, as will be explored in the following paragraphs.

When a balance between flexibility and certainty is achieved, judicial precedent can
ensure certainty in the law. As the courts follow past decisions, the public will know what
the law is and how it is applied with case examples. In addition, lawyers can advise their
clients on the likely outcome of their case as they have past cases and know that the courts
will likely follow past judgements. Even the Practice Statement, which allowed for some
flexibilities in following past decisions, itself points out the importance of certainty in the
law, stating that certainty was “the basis for orderly development of legal rules.” This can be
seen when the Supreme Court refused to overrule the previous decision in Re Dowling
during Jones v Secretary of State for Social Services even though four out of seven judges
believed the earlier judgement concerning the interpretation of the National Insurance
(Industrial Injuries) Act to be wrong.

Said certainty in judicial precedent also allows the system to uphold fairness and
equality under the law in the way that everyone under the circumstances will be subject to
the same outcome. This certainty also helps to speed up the litigative process, as judges can
make decisions faster as they have a large body of case law to consult and follow. The
amount of case law available for consultation, such as persuasive precedents, makes the law
precise, with detailed practical rules. Case law and past precedents give judges more
information than statutes alone, which are usually based on theory alone. Case law, on the
other hand, comes with detailed application of said statutes, as it is a response to real
situations. Thus, certainty in the law can indirectly promote the principle of parliamentary
supremacy, as judges apply statutes in a fixed way in order not to deviate too much from
the original intention of parliament. However, in some cases, a degree of flexibility is
needed to further the intentions of parliament, such as when the Supreme Court overruled
Davis v Johnson in Pepper v Hart to allow the consultation of Hansard, or the record of
parliamentary debates in statutory interpretation. This decision allowed future courts to use
Hansard as an additional or extrinsic aid in helping them make judgements.

Thus, the above example shows that certainty alone cannot bring about the full
advantages of the current system. A moderate application of flexibility also has its benefits.
There exists room for the law to change and adapt to the changing attitude of society and
new norms. Cases can be distinguished to avoid turning a large amount of cases into a
monolith, thereby avoiding injustice and catering to the individual circumstances of every
party, as seen when Merritt v Merritt was distinguished from Balfour v Balfour. While both
cases involved a wife claiming that their husband had a breach of contract, the later claim
succeeded due to the different circumstances, such as the couple already living separately
and having a written agreement, making their agreement a legally enforceable contract
unlike the earlier case.

Flexibility also can be used to correct errors, such as when the Supreme Court
demonstrated usage of the Practice Statement to overrule cases to correct previous errors.
This flexibility is useful as not every decision made is correct, sometimes drawing rightful
criticism from the public and law reporters. The flexibility that judicial precedence provides
can be used to develop areas of law and make landmark judgements that can advance rights
for disenfranchised communities. For example, the Supreme Court overruled a previous
precedent to convict a man of martial rape in R v R (1991). In previous cases, it was held that
marital rape was not an offense, as marriage essentially meant blanket consent on the
woman’s part, even though this was not always the case. This departure of previous
precedent was an advancement for women’s rights, rightfully giving them more autonomy.
This flexibility has also allowed for the advancement of voting rights and the rights of
minorities. Thus, flexibility in judicial precedent allows the courts to avoid injustice while
paving the way for changes in law that are in line with the changing social landscape.

However, when the courts stray too far into the territory of either too much
certainty or too much flexibility, problems may arise. If the courts apply the doctrine of
precedent too rigidly, the growth of law can become slow, which will eventually render the
law obsolete. This also means that bad decisions cannot be challenged, and could only be
overruled by Parliament passing a statute. Bad decisions may arise because judges may lack
the expertise and knowledge that a member of parliament may have. An example of this
was when the Supreme Court ruled in DPP v Smith that a person could be guilty of a criminal
offence even if they did not intend to cause injury or death. This decision was criticised
heavily, and it was only changed when Parliament passed the Criminal Justice Act 1967.
There have even been circumstances when the Court of Appeal refused to adhere to
precedent set by the Supreme Court, a superior court, due to bad decisions, such as when
the Court of Appeal refused to follow a ruling in Havana Railways in Miliangos v George
Frank (Textiles) Ltd that states that damages had to be awarded in sterling, as the economic
climate had changed, rendering the currency unstable, meaning that justice could not
always be done. The Supreme Court eventually overruled their own judgement in Miliangos
using the Practise Statement.

While flexibility can be used to right some wrongs, using flexibility too often can lead
to its own problems, such as illogical distinctions and ‘hair-splitting’ by judges trying to find
ways to avoid following binding precedent. This makes the law complex, unsystematic and
unpredictable, as judges could make random decisions, creating conflicting case law and
hampering accessibility for the average person to the legal system as well as the decision
making process for judges. This could be seen when judges had to decide between R v
Caldwell and R v G during Elliot v C, where a girl with learning difficulties had set a shed on
fire but was unaware of the damage caused. R v Caldwell held that awareness of damage
was irrelevant, but a different judgement was made in R v G which had very similar
circumstances to the case at hand. In future cases that run in the same vein, judges could
have a hard time deciding which case is the most suitable to be followed. However, to
prevent situations like this from arising, especially regarding sensitive topics, judges can
limit their own power to make law, and refer it to Parliament to decide instead, such as in
Airedale NHS Trust v Bland.

While the theory behind the system of precedent has many advantages in theory, it
is up to the courts to implement it properly to ensure its shortfalls may be curbed. Only then
can the public be sure that the courts can exercise their function properly, which is to see
that justice is served. However, to ensure that the system performs its intended purpose,
the law itself must be reformed occasionally, to prevent vague or unclear laws from
affecting how the law is carried out. With the proper checks and balances, public confidence
and accessibility in the law can be upheld while also ensuring that the people can get the
justice they deserve while taking into account personal circumstances and hardships.