How dangerous are the ways in which judges can avoid following a binding precedent when making a decision?

Firstly, we need to review which ways judges can avoid following a binding precedent when making a decision. The first way this can be done is when the Supreme Court use the 1996 Practice Statement, which stated that they could overrule cases when they agree that the past decision is wrong. A similar overruling action can be taken by the Court of Appeal to overrule any precedent itself to avoid injustice to a defendant. The other two ways this can be done is through distinguishing a binding precedent – find differences in the cases so that the binding precedent does not apply to the current case – or disapproving – where judges can disapprove of past decisions made by a judge of the same level.

The dangers that may be involved in this include retrospectivity and uncertainty, as it may not have appeared at the time of the defendant committing the action that they had been acting against the law; the undemocratic nature of judicial law making as judges’ role is applying law as opposed to making law; and the unclear nature of the way new law is made by judges compared with when a new law is laid down by Parliament. This demonstrates that there may need to be limits to judicial law making, even further than there currently is, but it is very difficult to attempt to limit this completely: judges need flexibility to provide just answers to real cases in a quickly changing world.