1.4 Judicial Precedent Flashcards
What is Original Precedent?
- Judge-made law where no previous precedent on the issue exists.
- Can only be created by the Supreme Court and the Court of Appeal.
- Examples: Donoghue v Stevenson
(1932) and R v R (1991);
Original Precedent criticisms and benefits
Original Precedent
* Criticisms:
unconstitutional, undemocratic; judges are unrepresentative and have a narrow view of the law.
- Benefits:
judges are in a good position to identify problems; prevents injustice and keeps the law moving and up to date.
What is a Binding Precedent?
FOLLOWS STARE DECISIS – stand by
what has been decided.
* Higher courts bind lower courts so like cases decided alike.
Two crucial elements of a judgment:
1. RATIO DECIDENDI – reasons for deciding (this creates the Binding Precedent)
- OBITER DICTA – things said by the
way (this is persuasive precedent only)
The court hierarchy is crucial to the operation of precedent.
Examples:
The Court of Appeal is bound by the Supreme Court, the Supreme Court binds all courts below it.
What is the definition of Persuasive Precedent?
Persuasive Precedent is not binding, but may be of interest to the judge in the current case.
Examples:
* Courts lower in the hierarchy –
R v R (1991)
- Decisions of the Privy Council –
A-G for Jersey v Holley (2005) - Statements made obiter dicta –
R v Gotts (1992) - Dissenting judgments – Hedley
Byrne v Heller & Partners (1964) - Decisions made by courts in other
countries – Re A (2001)
Describe the role of the Supreme court and judicial precedent (with case examples)?
Supreme Court is binding on all courts
- Supreme Court is bound by the
CJEU on EU matters. - Supreme Court can create original
precedent.
1966 – Practice Statement – the House of Lords can depart from its own previous decisions “when it appears right to do so”.
Examples:
Civil: Pepper v Hart (1992);
Describe the role of the Appeals court and judicial precedent (with case examples)?
Court of Appeal is binding on all courts below it.
- Court of Appeal is bound by the Supreme Court.
- Court of Appeal can create original precedent.
Decisions within Divisions are binding, subject to the exceptions in Young v Bristol Aeroplane. These are:
- Where there are two conflicting Court of Appeal decisions.
- Where a previous decision has been overturned by a later Supreme Court decision.
- Where the previous decision was
per incurium (made through lack of care) – R v Cooper.
Judicial Precedent – 4 Application Tools can you name them?
- Follow
- Overrule
- Reverse
- Distinguish
Describe how the application tool of ‘Follow’ works?
This follows the doctrine of stare decisis and operates with higher courts binding lower courts and like cases being decided alike. It is the ratio decidendi of the previous case
that is binding on the present case.
This will always be an option when the precedent court is higher than the current court
Describe how the application tool of ‘Overrule’ works?
When the earlier precedent was made in a lower court, the senior judges can overrule that earlier decision if they disagree with it.
The outcome of the earlier decision stays the same but will not be followed.
This was seen in the case of Candler v Crane Christmas & Co (1951) was overruled in: Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964)
This will always be an option when the precedent court is lower than the current court.
Describe how the application tool of ‘Reverse’ works?
If the decision of a lower court is appealed to a higher one, the higher court may change it if they feel the lower court has wrongly interpreted the law as seen in the case of RePinochet (1999).
This will only apply if the case is being heard as an appeal.
Describe how the application tool of ‘Distinguish’ works?
Here, the judge finds the material cases of the two cases sufficiently different to avoid following the precedent
this was seen in the case of Balfour v Balfour, which was distinguished in Merritt v Merritt.
This will always be an option where there are two cases whose facts can be distinguished.
What does the Practice Statement 1966 allow the Supreme Court to do (with case example)?
PRACTICE STATEMENT 1966
This allows the Supreme Court to depart from its own previous decisions “where it appears right to do so”. For example in the
case of Pepper v Hart (1993), where the House of Lords used the Practice Statement to overrule a previous decision forbidding
the use of Hansard in Statutory Interpretation.
This will ONLY APPLY if the Current Court is the Supreme Court AND the Precedent Court is also the Supreme Court or House of Lords
What do the ‘Young Exceptions’ allow the Court of Appeal to do (with case example and correct Latin terminology)?
YOUNG EXCEPTIONS
This allows the Court of Appeal to depart from its own decisions in 3 limited circumstances, for example if the
decision was made per incurium or “in error”, as seen in the case of R v Cooper (2011).
This will ONLY APPLY if the Current Court is the Court of Appeal AND the Precedent Court is also the Court of Appeal (same Division).
What is the definition of original precedent (with case example)?
ORIGINAL PRECEDENT
This allows the Court of Appeal and the House of Lords to create a precedent where one does not already exist as seen in the case of Donoghue v Stevenson (1932).
This will ONLY APPLY if the Current Court is the Court of Ap
Definition of Persuasive Precedent
PERSUASIVE PRECEDENT
This is any precedent that is not binding but may be of interest to judge. For example, decisions of courts in other countries as
seen in the case of Re A, decisions of the Privy Council and decisions of lower courts.
This will only apply if there are any indications that there is persuasive precedent available.
