The doctrine of judicial precedent with special reference
to the cases concerning seriously ill new born infants.
Christopher Stone
November 2009
Introduction
The doctrine of precedent will be illustrated by examination of the common law
relating to seriously ill infants. Childhood illness is an emotive subject; that which
constitutes a ‘serious’ illness is open to subjective interpretation but will be taken as
one that is life-threatening, either immediately or over a more protracted time scale,
but with the same inevitable outcome. ‘Infancy’ is medically defined as the first year
of life while ‘new born’ relates to the first 24 hours of life. The discussion that
follows need not be so constrained; where a case in early childhood contributes to the
discussion it will be cited.
First, consideration will be given to the rules of precedent and its context within the
wider system of U.K. law, E.U. law and the European Convention of Human Rights
(ECHR).
The doctrine of precedent
In deciding matters of common law, the judiciary look to previous cases to determine
what the law is – the doctrine of stare decisis (Latin: to stand by things decided).
Landmark cases set a precedent for subsequent determinations and are recorded in the
form of law reports. Where similarity exists to the prevailing conditions the precedent
may be followed; where there is little similarity the material facts of the case must be
distinguished in order to set the precedent aside. The ratio decidendi is central to this
process, for it identifies the material facts upon which the judgement is based and is
indicative of the scope of application of the precedent to subsequent cases.
Judicial review according to precedent, along with statute, forms a binding legal
authority. Persuasive authority includes obiter dicta, legal articles, legislative papers
and decisions made in other jurisdictions. Obiter dicta, comments made ‘in passing’
during judicial review, are viewpoints on legal principle and are not constrained by
the facts of the case. The more senior the judge, the more persuasive the obiter
becomes.
Stare decisis can be applied ‘vertically’ whereby precedent established in a higher
court is binding upon those of lower ranking according to the hierarchical,
‘pyramidal’, organisation of U.K. courts, thereby enabling them to overrule decisions
made in previous cases. It follows that precedent set in the Supreme Court is binding
upon all other courts. A higher court may reverse or overturn a decision made in a
lower court in consideration of a particular case, if that earlier decision were found to
be defective on a matter of law.
