Explain how judges can avoid following precedent

In common law, the doctrine of stare decisis, which means "to stand by things decided", is a fundamental principle that ensures consistency and predictability in the law. Courts are generally bound to follow precedents set by higher courts within the same jurisdiction. However, there are circumstances where judges may find it necessary to deviate from established precedent. This article explores how judges in the UK can avoid following precedent, using specific UK examples.

1. Distinguishing Cases on Facts
Judges can avoid following precedent by distinguishing the facts of the current case from those of the precedent case. If the factual circumstances of the case at hand differ materially from those in the precedent, a judge may determine that the precedent does not apply.

For example, in Balfour v Balfour (1919), the court held that a domestic agreement between a husband and wife was not legally binding. However, in Merritt v Merritt (1970), the court distinguished the facts because the agreement was made in writing after the couple had separated, thus making it legally binding. The different factual contexts allowed the judge to avoid the precedent set in Balfour.

2. Overruling Precedent
Higher courts in the UK, such as the Supreme Court, have the authority to overrule precedents. This occurs when judges believe that a previous decision was incorrect or no longer relevant.

A notable example is the case of R v R (1991), where the House of Lords overruled the long-standing precedent that a husband could not be guilty of raping his wife. This decision reflected changing societal attitudes towards marriage and personal autonomy, demonstrating the court's willingness to overrule outdated precedents.

3. Declaring Precedent as Obiter Dicta
Judges may avoid following precedent by determining that the relevant statements in the previous ruling were obiter dicta rather than ratio decidendi. The ratio decidendi, or the reasoning behind the decision, is binding, whereas obiter dicta—comments made by a judge that are not essential to the decision—are not.

In Central London Property Trust Ltd v High Trees House Ltd (1947), Lord Denning's comments on promissory estoppel were considered obiter dicta, as they were not essential to the resolution of the case. Later cases could avoid following these comments as binding precedent while still acknowledging their persuasive value.

4. Applying Constitutional or Statutory Interpretation
Judges may avoid following precedent by adopting a new interpretation of the relevant law, especially in cases involving constitutional or statutory provisions.

For instance, in R (Miller) v Secretary of State for Exiting the European Union (2017), the Supreme Court interpreted the constitutional requirements for triggering Article 50 of the Treaty on European Union. This case required a fresh interpretation of constitutional principles regarding parliamentary sovereignty and executive power, allowing the court to depart from previous understandings.

5. Recognising Precedent as Per Incuriam
A precedent may be deemed per incuriam, meaning "through lack of care", if it was decided without reference to a relevant statutory provision or legal principle. Judges can avoid following a per incuriam decision on the grounds that it was fundamentally flawed due to the oversight.

In Young v Bristol Aeroplane Co Ltd (1944), the Court of Appeal established that it is not bound by its previous decisions if those decisions were made per incuriam. This principle allows the court to correct past errors without being constrained by flawed precedents.

6. Using the Principle of Equity
Equity, a body of law developed to address the rigidity and limitations of common law, allows judges to exercise discretion and fairness in their rulings. Judges may invoke equitable principles to avoid applying a precedent that would result in an unjust outcome.

In Re Sigsworth (1935), the court applied equitable principles to prevent a son who had murdered his mother from inheriting her estate, despite the precedent that would have allowed him to inherit under the intestacy rules. This decision exemplifies the use of equity to achieve a just result.

7. Acknowledging Judicial Activism
In some instances, judges engage in judicial activism, consciously deciding to interpret laws in new ways that reflect contemporary values and societal changes. This can involve setting aside precedent to address issues that were not contemplated when the original decision was made.

A prominent example is Gillick v West Norfolk and Wisbech Area Health Authority (1985), where the House of Lords ruled that children under 16 could consent to medical treatment if they had sufficient understanding and intelligence. This decision marked a significant shift in the legal recognition of children's autonomy and reflected evolving societal values.

In conclusion, while the doctrine of stare decisis promotes legal stability and predictability, there are several legitimate methods by which judges in the UK can avoid following precedent. These methods include distinguishing facts, overruling precedent, declaring statements as obiter dicta, reinterpreting constitutional or statutory provisions, recognising decisions as per incuriam, applying equitable principles, and, at times, engaging in judicial activism. By employing these strategies, judges ensure that the law remains relevant, just, and responsive to the complexities of modern society.